81_FR_149
Page Range | 51075-51296 | |
FR Document |
Page and Subject | |
---|---|
81 FR 51193 - Commission Information Collection Activities (FERC-539); Comment Request | |
81 FR 51147 - Medicare Program; End-Stage Renal Disease Prospective Payment System, Coverage and Payment for Renal Dialysis Services Furnished to Individuals With Acute Kidney Injury, End-Stage Renal Disease Quality Incentive Program, Durable Medical Equipment, Prosthetics, Orthotics and Supplies Competitive Bidding Program Bid Surety Bonds, State Licensure and Appeals Process for Breach of Contract Actions, Durable Medical Equipment, Prosthetics, Orthotics and Supplies Competitive Bidding Program and Fee Schedule Adjustments, Access to Care Issues for Durable Medical Equipment; and the Comprehensive End-Stage Renal Disease Care Model | |
81 FR 51184 - Corporation for Travel Promotion (dba Brand USA) | |
81 FR 51180 - Lower Joseph Creek Restoration Project, Wallowa-Whitman National Forest Land and Resource Management Plan Amendment for Research Natural Area Establishment | |
81 FR 51079 - Revisions to the Civil Penalty Inflation Adjustment Tables; Correction | |
81 FR 51081 - Special Conditions: The Boeing Company Model 787-9 Series Airplane; Dynamic Test Requirements for Single-Occupant Oblique (Side-Facing) Seats With Inflatable and 3-Point Restraint Systems | |
81 FR 51086 - Special Conditions: Gulfstream Aerospace Corporation Model GVII-G500 Airplanes; Interaction of Systems and Structures Through a Three-Axis Fly-by-Wire System | |
81 FR 51090 - Special Conditions: Embraer S.A. Model EMB-545 and EMB-550 airplanes, Synthetic Vision System and Enhanced Flight Vision System on Head-Up Display | |
81 FR 51093 - Special Conditions: FedEx Express Corporation, Boeing Model 767-300F; Enhanced Flight Vision System | |
81 FR 51210 - DHS Data Privacy and Integrity Advisory Committee | |
81 FR 51174 - The Scotts Co. and Monsanto Co.; Notice of Intent To Prepare an Environmental Impact Statement for Determination of Nonregulated Status of Glyphosate-Resistant Creeping Bentgrass | |
81 FR 51193 - Proposed Agency Information Collection | |
81 FR 51205 - Delegation of Authorities | |
81 FR 51187 - Ammonium Sulfate From the People's Republic of China: Postponement of Preliminary Determination in the Countervailing Duty Investigation | |
81 FR 51185 - Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Correction of the Antidumping Duty New Shipper Review Federal Register Notice | |
81 FR 51271 - Open Meeting of the Federal Advisory Committee on Insurance | |
81 FR 51185 - Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China: Initiation of Antidumping Duty New Shipper Review | |
81 FR 51126 - Trade Monitoring Procedures for Fishery Products; International Trade in Seafood; Permit Requirements for Importers and Exporters | |
81 FR 51095 - Special Conditions: Associated Air Center, Boeing Model 747-8 Airplane; Installation of an Airbag System To Limit the Axial Rotation of the Upper Leg on Single-Place Side-Facing Seats | |
81 FR 51145 - National Emission Standards for Aerospace Manufacturing and Rework Facilities Risk and Technology Review; Clarification | |
81 FR 51114 - National Emission Standards for Aerospace Manufacturing and Rework Facilities Risk and Technology Review; Clarification | |
81 FR 51198 - Clean Air Act Operating Permit Program; Petitions for Objection to State Operating Permits for ABC Coke and Walter Coke (Jefferson County, Alabama) | |
81 FR 51199 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
81 FR 51205 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
81 FR 51217 - Steam Generator Materials and Design | |
81 FR 51182 - Agenda and Notice of Public Meeting of the Connecticut Advisory Committee | |
81 FR 51199 - Notice of Agreements Filed | |
81 FR 51265 - Notice of Application for Approval of Discontinuance or Modification of a Railroad Signal System | |
81 FR 51210 - Tribal Consultation and Listening Sessions on Indian Trust Asset Reform Act | |
81 FR 51180 - Forest Resource Coordinating Committee | |
81 FR 51120 - Medicare, Medicaid, and Children's Health Insurance Programs: Announcement of the Implementation and Extension of Temporary Moratoria on Enrollment of Part B Non-Emergency Ground Ambulance Suppliers and Home Health Agencies in Designated Geographic Locations and Lifting of the Temporary Moratoria on Enrollment of Part B Emergency Ground Ambulance Suppliers in All Geographic Locations | |
81 FR 51116 - Medicare, Medicaid, and Children's Health Insurance Programs: Announcement of the Provider Enrollment Moratoria Access Waiver Demonstration of Part B Non-Emergency Ground Ambulance Suppliers and Home Health Agencies in Moratoria-Designated Geographic Locations | |
81 FR 51199 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
81 FR 51264 - International Telecommunication Advisory Committee; Solicitation of Membership | |
81 FR 51213 - Notice of Lodging of Proposed Consent Decree Under the Clean Water Act | |
81 FR 51218 - Virginia Electric Power Company; Surry Power Station, Unit Nos. 1 and 2; Use of AREVA's M5® Alloy Fuel Rod Cladding Material | |
81 FR 51189 - New England Fishery Management Council; Public Meeting | |
81 FR 51190 - Gulf of Mexico Fishery Management Council; Public Meeting | |
81 FR 51216 - Advisory Committee on the Medical Uses of Isotopes: Meeting Notice | |
81 FR 51264 - Notice of Renewal of the Charter of the International Telecommunication Advisory Committee (ITAC) | |
81 FR 51140 - Convention on Supplementary Compensation for Nuclear Damage Contingent Cost Allocation | |
81 FR 51179 - Beaverhead-Deerlodge National Forest; Montana; Supplemental EIS for the Beaverhead-Deerlodge National Forest Land and Resource Management Plan To Comply With District of Montana Court Order | |
81 FR 51265 - Morristown & Erie Railway, Inc.-Abandonment Exemption-In Roseland, Essex County, N.J. | |
81 FR 51192 - Record of Decision for Activities and Operations at Yuma Proving Ground, Arizona | |
81 FR 51192 - Notice of Intent To Return Human Remains: National Museum of Health and Medicine, Defense Health Agency, Silver Spring, MD | |
81 FR 51195 - Pine Creek Mine, LLC; Notice of Application Accepted for Filing, Soliciting Motions To Intervene and Protests, Ready for Environmental Analysis, and Soliciting Comments, Recommendations, Terms and Conditions, and Prescriptions | |
81 FR 51196 - Metropolitan District; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To Intervene | |
81 FR 51100 - Electronic Tariff Filings | |
81 FR 51196 - New England Hydropower Company, LLC, Hanover Pond Hydro, LLC; Notice of Transfer of Exemption | |
81 FR 51197 - Elephant Butte Irrigation District; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To Intervene | |
81 FR 51177 - Privacy Act Systems of Records; Veterinary Services-Records of Accredited Veterinarians | |
81 FR 51211 - Notice of Inventory Completion: University of Pennsylvania Museum of Archaeology and Anthropology, Philadelphia, PA | |
81 FR 51212 - Agency Information Collection Activities; Proposed Collection Comments Requested; Extension, Without Change, of a Currently Approved Collection Bulletproof Vest Partnership (BVP) | |
81 FR 51188 - Endangered Species; File Nos. 19331 and 19642 | |
81 FR 51190 - Determination Under the Textile and Apparel Commercial Availability Provision of the Dominican Republic-Central America-United States Free Trade Agreement (“CAFTA-DR Agreement”) | |
81 FR 51181 - White Pine-Nye Resource Advisory Committee | |
81 FR 51214 - Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO): Meeting | |
81 FR 51176 - Secretary's Advisory Committee on Animal Health; Intent To Renew | |
81 FR 51188 - Extension of U.S. Section Member Appointments to the United States-Brazil CEO Forum | |
81 FR 51178 - Notice of a Request for Extension of a Currently Approved Information Collection | |
81 FR 51186 - Polyethylene Terephthalate Film, Sheet, and Strip From India: Preliminary Results and Partial Rescission of Countervailing Duty Administrative Review; 2014 | |
81 FR 51213 - Notice of Public Comment Period on the DRAFT “National Best Practices for Sexual Assault Kits: A Multidisciplinary Approach” | |
81 FR 51206 - Changes in Flood Hazard Determinations | |
81 FR 51183 - Civil Nuclear Trade Advisory Committee: Notice of an Opportunity To Apply For Membership | |
81 FR 51205 - Request for Comment on Report Entitled: Advancing the Care of Pregnant and Parenting Women With Opioid Use Disorder and Their Infants: A Foundation for Clinical Guidance | |
81 FR 51084 - Special Conditions: The Boeing Company Model 777-300ER Airplanes; Dynamic Test Requirements for Single-Occupant Oblique (Side-Facing) Seats with Inflatable Restraints | |
81 FR 51237 - CSat Investment Advisory, L.P., et al.; Notice of Application | |
81 FR 51220 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of Proposed Rule Change Concerning Enhancements to The Options Clearing Corporation's Governance Arrangements | |
81 FR 51251 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Amendment No. 3 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 3, To List and Trade Shares of the PowerShares Variable Rate Investment Grade Portfolio, a Series of the PowerShares Actively Managed Exchange-Traded Fund Trust | |
81 FR 51249 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change Amending the Ninth Amended and Restated Operating Agreement of the Exchange | |
81 FR 51239 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Clarify the Operation of the Regulation NMS Plan To Address Extraordinary Market Volatility | |
81 FR 51256 - Program for Allocation of Regulatory Responsibilities Pursuant to Rule 17d-2; Order Approving and Declaring Effective a Proposed Plan for the Allocation of Regulatory Responsibilities Between the Financial Industry Regulatory Authority, Inc. and the Investors Exchange LLC | |
81 FR 51241 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Relating to the Listing and Trading of Shares of the Direxion Daily Municipal Bond Taxable Bear 1X Fund Under NYSE Arca Equities Rule 5.2(j)(3) | |
81 FR 51248 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change Relating to Amendments to NYSE MKT Rules 1600 et seq. | |
81 FR 51258 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding Tiers Related to SPY Options | |
81 FR 51215 - Agency Information Collection Activities: Proposed Collection; Comment Request; Advertising of Excess Insurance | |
81 FR 51220 - New Postal Product | |
81 FR 51182 - Submission for OMB Review; Comment Request | |
81 FR 51266 - Michelin North America, Inc., Receipt of Petition for Decision of Inconsequential Noncompliance | |
81 FR 51269 - Cooper Tire & Rubber Company, Receipt of Petition for Decision of Inconsequential Noncompliance | |
81 FR 51267 - Cooper Tire & Rubber Company, Receipt of Petition for Decision of Inconsequential Noncompliance | |
81 FR 51215 - Information Collection: “NRC Form 212, Qualifications Investigation, Professional, Technical and Administrative Positions” | |
81 FR 51201 - Medical X-Ray Imaging Devices Conformance With International Electrotechnical Commission Standards; Draft Guidance for Industry and Food and Drug Administration Staff; Availability | |
81 FR 51204 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Agreement for Shipment of Devices for Sterilization | |
81 FR 51189 - Marine Mammals; File No. 18879 | |
81 FR 51125 - Department of State Acquisition Regulation | |
81 FR 51142 - Airworthiness Directives; Airbus Airplanes | |
81 FR 51165 - Atlantic Highly Migratory Species; Commercial Retention Limit for Blacknose Sharks and Non-Blacknose Small Coastal Sharks in the Atlantic Region | |
81 FR 51138 - Snapper-Grouper Fishery of the South Atlantic; 2016 Commercial Accountability Measure and Closure for the South Atlantic Lesser Amberjack, Almaco Jack, and Banded Rudderfish Complex | |
81 FR 51270 - List of Applications Delayed More Than 180 Days | |
81 FR 51097 - Airworthiness Directives; Airbus Airplanes | |
81 FR 51145 - Procedures Related to Motions | |
81 FR 51075 - National Organic Program (NOP); Sunset 2016 Amendments to the National List | |
81 FR 51147 - Dispute Resolution Procedures Under the Fixing America's Surface Transportation Act of 2015 | |
81 FR 51273 - Environmental Policies and Procedures; Compliance With the National Environmental Policy Act and Related Authorities | |
81 FR 51100 - Extension of Expiration Dates for Four Body System Listings | |
81 FR 51149 - Petition for Rulemaking To Adopt Revised Competitive Switching Rules; Reciprocal Switching | |
81 FR 51102 - Amendments to Regional Consistency Regulations | |
81 FR 51179 - Ketchikan Resource Advisory Committee | |
81 FR 51174 - Notice of Public Information Collections Being Reviewed by the U.S. Agency for International Development; Comments Requested |
Agricultural Marketing Service
Animal and Plant Health Inspection Service
Commodity Credit Corporation
Farm Service Agency
Foreign Agricultural Service
Forest Service
Rural Business-Cooperative Service
Rural Housing Service
Rural Utilities Service
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Federal Emergency Management Agency
National Park Service
Justice Programs Office
Federal Aviation Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
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.
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Agricultural Marketing Service, USDA.
Final rule.
This final rule addresses recommendations submitted to the Secretary of Agriculture (Secretary) by the National Organic Standards Board (NOSB) following their April 2015 meeting. These recommendations pertain to the 2016 sunset review of substances on the U.S. Department of Agriculture's (USDA) National List of Allowed and Prohibited Substances (National List). Consistent with the recommendations from the NOSB, this final rule removes five nonorganic nonagricultural substances from the National List for use in organic handling: Egg white lysozyme, cyclohexylamine, diethylaminoethanol, octadecylamine, and tetrasodium pyrophosphate when their use exemptions (allowances) expire on September 12, 2016.
Paul Lewis, Ph.D., Director, Standards Division,
The National Organic Program (NOP) is authorized by the Organic Foods Production Act of 1990 (OFPA), as amended (7 U.S.C. 6501-6522). The USDA Agricultural Marketing Service (AMS) administers the NOP. Final regulations implementing the NOP, also referred to as the USDA organic regulations, were published December 21, 2000 (65 FR 80548), and became effective on October 21, 2002. Through these regulations, the AMS oversees national standards for the production, handling, and labeling of organically produced agricultural products. Since becoming effective, the USDA organic regulations have been frequently amended, mostly for changes to the National List in 7 CFR 205.601-205.606.
This National List identifies the synthetic substances that may be used and the nonsynthetic substances that may not be used in organic production. The National List also identifies synthetic, nonsynthetic nonagricultural, and nonorganic agricultural substances that may be used in organic handling. The OFPA and the USDA organic regulations, as indicated in § 205.105, specifically prohibit the use of any synthetic substance in organic production and handling unless the synthetic substance is on the National List. Section 205.105 also requires that any nonorganic agricultural substance and any nonsynthetic nonagricultural substance used in organic handling appear on the National List.
As stipulated by the OFPA, the NOSB develops recommendations to amend the National List. The NOSB operates in accordance with the Federal Advisory Committee Act (5 U.S.C. App. 2
The NOSB's recommendations to continue existing exemptions and prohibitions include consideration of public comments and applicable supporting evidence that express a continued need for the use or prohibition of the substance(s) as required by the OFPA. Recommendations to either continue or discontinue an authorized exempted synthetic substance (7 U.S.C. 6517(c)(1)) are determined by the NOSB's evaluation of technical information, public comments, and supporting evidence that demonstrate that the substance is: (a) Harmful to human health or the environment; (b) no longer necessary for organic production due to the availability of alternative wholly nonsynthetic substitute products or practices; or (c) inconsistent with organic farming and handling practices.
In accordance with the sunset review process published in the
After considering public comments and supporting documents, the NOSB determined that one substance allowed on § 205.605(a) and four substances allowed on § 205.605(b) of the National List are no longer necessary or essential for organic handling. The NOSB concluded that practices and other substances are suitable alternatives to egg white lysozyme, cyclohexylamine, diethylaminoethanol, octadecylamine, and tetrasodium pyrophosphate. AMS has reviewed and accepts the five NOSB recommendations for removal. Based upon these NOSB recommendations, this action amends the National List to remove the exemptions for egg white lysozyme, cyclohexylamine, diethylaminoethanol, octadecylamine, and tetrasodium pyrophosphate when their use exemptions expire on September 12, 2016.
The USDA organic regulations include an exemption on the National List for egg white lysozyme as a nonsynthetic ingredient for use in organic processed products at § 205.605(a) as follows: Egg white lysozyme (CAS # 9001-63-2). In 2004, egg white lysozyme was petitioned for addition to § 205.605 because it was considered to be an essential processing aid/preservative for controlling bacteria that survived the pasteurization process of milk that is used for cheese manufacture. As recommended by the NOSB, egg white lysozyme was added to the National List on September 12, 2006 (71 FR 53299). The NOSB recommended the renewal of egg white lysozyme during their 2011 sunset review and the listing was renewed in a final rule published on August 3, 2011 (76 FR 46595). The NOSB completed the 2016 sunset review for the allowance of egg white lysozyme at their April 2015 meeting.
AMS published two notices of the NOSB public meetings covering the 2016 sunset review, in
Public comments provided the NOSB with information about the availability of practice-based alternatives to the use of egg white lysozyme. Such comments provided limited information to support the continued need for egg white lysozyme in organic processed products. Based on those public comments, the NOSB determined that the allowance for egg white lysozyme on the National List in § 205.605(a) is no longer necessary or essential for organic processed products. Subsequently, the NOSB recommended removal of egg white lysozyme from the National List at their April 2015 public meeting.
A proposed rule to remove egg white lysozyme from the National List was published on December 16, 2015 (80 FR 78150). AMS received comments that egg white lysozyme is used in the organic processing of beer, wine and hard cheeses. The prevalence of use in organic processing could not be ascertained from the public comments. Further, the comments did not assert that egg white lysozyme is essential in organic processing. Therefore, consistent with the NOSB recommendation, this final rule amends § 205.605(a) by removing the allowance for egg white lysozyme. This amendment is effective on egg white lysozyme's sunset date, September 12, 2016. After that date, egg white lysozyme will be prohibited in organic processing.
The USDA organic regulations include allowances on the National List for cyclohexylamine, diethylaminoethanol and octadcylamine as processing aids for use in organic processing at § 205.605(b) as follows:
Cyclohexylamine (CAS # 108-91-8)—for use only as a boiler water additive for packaging sterilization.
Diethylaminoethanol (CAS # 100-37-8)—for use only as a boiler water additive for packaging sterilization.
Octadecylamine (CAS # 124-30-1)—for use only as a boiler water additive for packaging sterilization.
Cyclohexylamine, diethylaminoethanol and octadcylamine were added to the National List on September 12, 2006 (71 FR 53299). The NOSB recommended the renewal of cyclohexylamine, diethylaminoethanol and octadcylamine during their 2011 sunset review. AMS published a notice renewing the allowances for cyclohexylamine, diethylaminoethanol and octadcylamine the National List on August 3, 2011 (76 FR 46595).
Subsequently, the NOSB considered the allowances for cyclohexylamine, diethylaminoethanol, and octadcylamine during the 2016 sunset review. AMS published two notices in the
The September 2014 and April 2015 NOSB meeting notices requested information on the continued use of cyclohexylamin, diethylaminoethanol, or octadcylamine as boiler water additives in organic processing. Public comment in response to these requests informed the NOSB that organic processors are phasing out these materials. The comments provided limited information supporting the continued need for the use of cyclohexylamine, diethylaminoethanol, or octadcylamine as boiler water additives. The NOSB cited information from public comments and the potential for adverse human health and environmental impacts in their conclusion that the allowances for cyclohexylamine, diethylaminoethanol, or octadcylamine on § 205.605(b) are no longer necessary or essential in organic processing. Therefore, the NOSB recommended that cyclohexylamine, diethylaminoethanol, and octadcylamine be removed from the National List.
AMS published a proposed rule with a request for comments on December 16, 2015 (80 FR 78150). No public comments were received supporting the continued use of cyclohexylamine, diethylaminoethanol, and octadcylamine in organic processing. Consistent with the NOSB recommendation, this final rule amends § 205.605(b) by removing the allowances for cyclohexylamine, diethylaminoethanol, and octadcylamine. This amendment is effective on cyclohexylamine,
The USDA organic regulations include an exemption on the National List for tetrasodium pyrophosphate as an ingredient for use in organic processed products at § 205.605(b) as follows: Tetrasodium pyrophosphate (CAS # 7722-88-5)—for use only in meat analog products. In December 2001, tetrasodium pyrophosphate was petitioned for addition onto § 205.605 for use as an ingredient in organic food processing facilities. As recommended by the NOSB, tetrasodium pyrophosphate was added to the National List on September 12, 2006 (71 FR 53299). In the 2011 sunset review, the NOSB recommended renewing the allowance for tetrasodium pyrophosphate. Consistent with the NOSB recommendation, AMS published a notice in the
For the 2016 sunset review, AMS published two notices in
Public comment to the NOSB did not support a continued need for tetrasodium pyrophosphate in the production of organic processed products and informed that various alternative substances are available. Based on public comments and information in the 2014 technical report on tetrasodium pyrophosphate, the NOSB determined that there are alternatives to this substances that may be more compatible with organic production. Therefore, the NOSB determined that the allowance for tetrasodium pyrophosphate on § 205.605(b) is no longer necessary or essential for organic processed products and recommended that tetrasodium pyrophosphate be removed from the National List.
A proposed rule with a request for comments was published on December 16, 2015 (80 FR 78150), and no public comments were received supporting the continued use of tetrasodium pyrophosphate in processed organic products. Consistent with the NOSB recommendation, this final rule amends § 205.605(b) by removing the substance exemption for tetrasodium pyrophosphate. This amendment is effective on tetrasodium pyrophosphate's current sunset date, September 12, 2016. After that date, tetrasodium pyrophosphate will be prohibited in organic processing.
Two notices of public meetings with request for comments were published in
OFPA, as amended (7 U.S.C. 6501-6522), authorizes the Secretary to make amendments to the National List based on proposed recommendations developed by the NOSB. Sections 6518(k)(2) and 6518(n) of OFPA authorize the NOSB to develop proposed amendments to the National List for submission to the Secretary and establish a petition process by which persons may petition the NOSB for the purpose of having substances evaluated for inclusion on or deletion from the National List. The National List petition process is implemented under § 205.607 of the USDA organic regulations. The National List Petition Guidelines (NOP 3011) are published in the NOP Handbook which is available on the AMS Web site,
This action has been determined to be not significant for purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget.
Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This proposed rule is not intended to have a retroactive effect.
States and local jurisdictions are preempted under OFPA from creating programs of accreditation for private persons or State officials who want to become certifying agents of organic farms or handling operations. A governing State official would have to apply to USDA to be accredited as a certifying agent, as described in section 6514(b) of OFPA. States are also preempted under sections 6503 through 6507 of OFPA from creating certification programs to certify organic farms or handling operations unless the State programs have been submitted to, and approved by, the Secretary as meeting the requirements of OFPA.
Pursuant to section 6507(b)(2) of OFPA, a State organic certification program may contain additional requirements for the production and handling of organically produced agricultural products that are produced in the State and for the certification of organic farm and handling operations located within the State under certain circumstances. Such additional requirements must: (a) Further the
Pursuant to section 6519(f) of OFPA, this proposed rule would not alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601-624), the Poultry Products Inspection Act (21 U.S.C. 451-471), or the Egg Products Inspection Act (21 U.S.C. 1031-1056), concerning meat, poultry, and egg products, nor any of the authorities of the Secretary of Health and Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301-399), nor the authority of the Administrator of EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136-136(y)).
Section 6520 of OFPA provides for the Secretary to establish an expedited administrative appeals procedure under which persons may appeal an action of the Secretary, the applicable governing State official, or a certifying agent under this title that adversely affects such person or is inconsistent with the organic certification program established under this title. OFPA also provides that the U.S. District Court for the district in which a person is located has jurisdiction to review the Secretary's decision.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires agencies to consider the economic impact of each rule on small entities and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to the action. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
Pursuant to the requirements set forth in the RFA, AMS performed an economic impact analysis on small entities in the final rule published in the
Small agricultural service firms, which include producers, handlers, and accredited certifying agents, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000 and small agricultural producers are defined as those having annual receipts of less than $750,000.
According to USDA, National Agricultural Statistics Service (NASS), certified organic acreage exceeded 3.6 million acres in 2014.
No additional collection or recordkeeping requirements are imposed on the public by this rule. Accordingly, OMB clearance is not required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, Chapter 35.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.
AMS received nine comments from two consumers, one certifying agent, and six manufacturers (of organic products and ingredients used in organic products) on proposed rule AMS-NOP-15-0052. These written comments can be viewed at
One comment presented general concerns about organic inspections that are not within the scope of this rule. One comment stated general opposition to all chemicals in organic production and agreed with the proposal to remove five nonorganic, nonagricultural substances from the National List.
The comments of a certifying agent and six manufacturers opposed the proposal to remove the allowance for egg white lysozyme in organic processing. These comments indicated that egg white lysozyme is used in the production of wine, beer and hard cheeses. The comments did not specify the prevalence of egg white lysozyme in organic processing or provide compelling information to explain why this substance is essential in organic processing. Therefore, AMS is implementing the NOSB recommendation to remove this substance from the National List.
No comments addressed the proposed removal of cyclohexylamine, diethylaminoethanol, octadecylamine, and tetrasodium pyrophosphate.
Consistent with the NOSB recommendations, this final rule amends § 205.605 by removing egg white lysozyme, cyclohexylamine, diethylaminoethanol, octadecylamine, and tetrasodium pyrophosphate.
This amendment is effective on the current sunset date, September 12, 2016.
Records, Imports, Labeling, Organically produced products, Plants, Reporting and recordkeeping requirements, Seals and insignia, Soil conservation.
For the reasons set forth in the preamble, 7 CFR part 205 is amended as follows:
7 U.S.C. 6501-6522.
Federal Aviation Administration (FAA), DOT.
Interim final rule; correction.
The FAA is correcting an interim final rule titled “Revisions to the Civil Penalty Inflation Adjustment Tables” that it published in the
This correction is effective on August 5, 2016.
Cole R. Milliard, Attorney, Office of the Chief Counsel, Enforcement Division, AGC-300, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-3452; email
Prior to the July 5 final rule's publication, the Pipeline and Hazardous Materials Safety Administration (PHMSA), the Department of Transportation (DOT) agency primarily responsible for developing and enforcing hazardous materials regulations, published its catch-up adjustments for civil penalties, including those for violations of 49 U.S.C. 5123(a)(3). The FAA is amending its catch-up adjustment for 49 U.S.C. 5123(a)(3) to harmonize it with PHMSA's.
On July 5, 2016, the FAA published an interim final rule
The FCPIAA, DCIA, and the 2015 Act require Federal agencies to adjust minimum and maximum civil penalty amounts for inflation to preserve their deterrent impact. The 2015 Act amended the formula and frequency of inflation adjustments. It required an initial catch-up adjustment in the form of an interim final rule, followed by annual adjustments of penalty amounts. The amount of the adjustment must be made using a strict statutory formula that was discussed in the final rule and is corrected as indicated below.
As mentioned above, the FAA's interim final rule was published on July 5, 2016, and included an inflation adjustment for civil penalties associated with hazardous materials training violations under 49 U.S.C. 5123(a)(3). On June 29, 2016, prior to the FAA's civil penalty inflation adjustment publication, the Pipeline and Hazardous Materials Safety Administration (PHMSA), the DOT agency primarily responsible for developing and enforcing hazardous materials regulations, also published its catch-up adjustments for civil penalties, including those for violations of 49 U.S.C. 5123(a)(3). PHMSA, however, came up with a different adjustment to the minimum penalty for training than the FAA. PHMSA read technical amendments made to section 5123(a)(3) in 2012 to be adjusting the minimum penalty back down from a 2009 PHMSA inflation adjustment.
The FAA is also making technical corrections to its interim final rule. First, it is correcting the effective date noted in the table included in 14 CFR 13.301(c), to reflect the correct effective date of August 5, 2016 (not August 1, 2016). Second, the word “established” is replacing the word “set” when used in reference to the “catch-up adjustment” formula provided by the 2015 Act to make the text of the interim final rule consistent with the statutory text of the 2015 Act. Finally, the FAA is correcting the reference to “section 5123” in the hazmat adjustment example for 49 U.S.C. 5123(a)(1), provided in the background section of the interim final rule, to specifically reference section 5123(a)(1).
In FR Doc. 2016-7004, beginning on page 43463 in the
1. On page 43464, in the second column, under the heading “Background”, in the second paragraph,
2. On page 43464, in the third column, correct the ninth line from the top by replacing the word “set” with “established”.
3. On page 43464, in the third column, correct subparagraph (1) by replacing the word “set” with “established” in both places it is used, replacing the word “reset” with “adjusted” and replacing the words “Section 5123” with “Section 5123(a)(1)”.
4. On page 43464, correct the heading of the second column of the table by replacing the word “set” with “established”.
5. On page 43464, correct the heading of the third column of the table by replacing the word “set” with “established”.
6. On page 43464, correct the second column of the table by replacing “2005” with “2012” in the third line (referencing 49 U.S.C. Statute 5123(a)(3)).
7. On page 43464, correct the fourth column of the table by replacing “1.19397” with “1.02819” in the third line (referencing 49 U.S.C. Statute 5123(a)(3)).
8. On page 43464, correct the fifth column of the table by replacing “537” with “463” in the third line (referencing 49 U.S.C. Statute 5123(a)(3)).
(c) Minimum and maximum civil monetary penalties within the jurisdiction of the FAA are as follows:
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for The Boeing Company (Boeing) Model 787-9 series airplane. This airplane, as modified by Boeing, will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. These design features are single-occupant oblique (side-facing) seats with inflatable and 3-point restraint systems requiring dynamic testing. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on Boeing on August 3, 2016. We must receive your comments by September 19, 2016.
Send comments identified by docket number FAA-2016-5909 using any of the following methods:
•
•
•
•
Jeff Gardlin, FAA, Airframe and Cabin Safety branch, ANM-115, Transport
The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.
In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On January 29, 2016, Boeing applied for a change to type certificate no. T00021SE to install single-occupant oblique (side-facing) seats with inflatable and 3-point restraint systems in the Model 787-9 airplane.
This airplane is a twin-engine transport-category airplane. It has a 420-passenger capacity and a maximum takeoff weight of 553,000 lbs.
Under the provisions of title 14, Code of Federal Regulations (14 CFR), 21.101, Boeing must show that the Model 787-9 airplane meets the applicable provisions of the regulations listed in type certificate no. T00021SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.
If the Administrator finds that the applicable airworthiness regulations (
In addition to the applicable airworthiness regulations and special conditions, the Model 787-9 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The Model 787-9 airplane will incorporate the following novel or unusual design features:
Single-occupant oblique (side-facing) seats with inflatable and 3-point restraint systems requiring dynamic testing.
Amendment 25-15 to part 25, dated October 24, 1967, introduced the subject of side-facing seats and a requirement that each occupant in a side-facing seat must be protected from head injury by a safety belt and a cushioned rest that will support the arms, shoulders, head, and spine.
Subsequently, Amendment 25-20, dated April 23, 1969, clarified the definition of side-facing seats to require that each occupant of a seat that is positioned at more than an 18-degree angle to the vertical plane containing the airplane centerline must be protected from head injury by a safety belt and an energy-absorbing rest that supports the arms, shoulders, head, and spine; or by a safety belt and shoulder harness that prevents the head from contacting injurious objects. The FAA concluded that a maximum 18-degree angle would provide an adequate level of safety based on tests that were performed at the time, and thus adopted that standard.
Amendment 25-64, dated June 16, 1988, revised the emergency-landing conditions that must be considered in the design of the airplane. It revised the static-load conditions in 14 CFR 25.561 and added a new § 25.562, requiring dynamic testing for all seats approved for occupancy during takeoff and landing. The intent was to provide an improved level of safety for occupants on transport-category airplanes. Because most seating on transport-category airplanes is forward-facing, the pass/fail criteria developed in Amendment 25-64 focused primarily on forward-facing seats. Therefore, the testing specified in the rule did not provide a complete measure of occupant injury in seats that are not forward-facing; although § 25.785 does require that occupants of all seats that are occupied during taxi, takeoff, and landing not suffer serious injury as a result of the inertia forces specified in §§ 25.561 and 25.562.
To address recent research findings and accommodate commercial demand, the FAA developed a methodology to address all fully side-facing seats (
For shallower installation angles, the FAA has granted equivalent level of safety (ELOS) findings for oblique seat installations on the premise that an occupant's kinematics in an oblique seat during a forward impact would result in the body aligning with the impact direction. We predicted that the occupant response would be similar to an occupant of a forward-facing seat, and would produce a level of safety equivalent to that of a forward-facing seat. These ELOS findings were subject to many conditions that reflected the injury-evaluation criteria and mitigation strategies available at the time of issuance of the ELOS. However, review of dynamic test results for many of these oblique seat installations raised concerns that the premise was not correct. Potential injury mechanisms exist that are unique to oblique seats and are not mitigated by the ELOS self-alignment approach even if the occupant appears to respond similarly to a forward-facing seat.
The proposed Model 787 airplane oblique business-class seat installations are novel such that the current Model 787 airplane certification basis does not adequately address occupant protection expectations with regard to the occupant's neck and spine for seat configurations that are oriented at an angle greater than 18-degrees from the airplane centerline. The FAA has previously issued special conditions no. 25-580-SC for the 787, which reflected the best available criteria at the time. However, as the FAA continues research into the injury mechanisms associated with obliquely oriented seats and the means to measure those injuries, the criteria evolve. These special conditions
Boeing proposes to install on Model 787-9 airplanes 3-point restraint systems and airbag devices as a means to protect each occupant from serious injury in the event of an emergency landing, as required by § 25.562(c)(5). Shoulder harnesses have been widely used on attendant seats, flight-deck seats, business jets, and general-aviation airplanes to reduce occupant head injury in the unlikely event of an emergency landing. A passenger-seat 3-point restraint system is defined as a safety belt (pelvic restraint), a single-belt shoulder harness, and the seat structure associated with the harness attachment points. The 3-point restraint system is intended to protect the occupant from serious injury, and the means of protection must take into consideration a range of occupant stature, ranging from a 2-year old child to a 95th percentile male, in addition to the oblique seat orientation. The use of 3- point restraint systems on transport-category airplane passenger seats is rare; however, existing regulations provide an adequate safety standard for these installations. The FAA has issued advisory material on acceptable means of compliance for combined shoulder-harness and safety-belt restraint systems, such as the 3-point restraint system.
Inflatable airbag devices are designed to limit occupant forward excursion in the event of an accident. This will reduce the potential for head injury, thereby reducing the head injury criteria (HIC) measurement. While inflatable airbags are now standard in the automotive industry, the use of an inflatable airbag device is novel for commercial aviation. Special conditions exist for airbags installed on seat belts, known as inflatable lapbelts, which have been installed on Boeing passenger seats. The FAA has also issued special conditions for structure-mounted airbags on the Model 787-9 that are similar to those for inflatable lapbelts, but that account for the differences between the two types of airbag installations.
These special conditions are applicable to the following Boeing Model 787-9 airplanes: AAL ZB 446 (Project PS15-0762), AMX ZB 676 (Project PS15-0588), XIA ZB 812 (Project PS16-0060), and JAL ZB 424 (Project PS15-0723).
This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.
The substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 787-9 airplanes.
In addition to the requirements of § 25.562:
Compliance with § 25.562(c)(5) is required, except that, if the anthropomorphic test device (ATD) has no apparent contact with the seat/structure but has contact with an airbag, a HIC unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.
If a seat is installed aft of structure (
The seating system must protect the occupant from experiencing serious neck injury. If an airbag device is present, the assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.
a. The N
b. In addition, peak upper-neck F
c. Rotation of the head about its vertical axis, relative to the torso, is limited to 105 degrees in either direction from forward-facing.
d. The neck must not impact any surface that would produce concentrated loading on the neck.
a. The lumbar spine tension (Fz) cannot exceed 1200 lb.
b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X direction) acceleration exceeding 20g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE International (SAE) J211-1.
c. The occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.
Any part of the load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of the seat bottom seat-cushion supporting structure.
Axial rotation of the upper leg (about the z-axis of the femur per SAE Recommended Practice J211-1) must be limited to 35 degrees from the nominal
Longitudinal tests conducted to measure the injury criteria above must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609. The tests must be conducted with an undeformed floor, at the most-critical yaw cases for injury, and with all lateral structural supports (
When present, the structure-mounted airbag device must meet special conditions no. 25-605-SC, “Boeing Model 787-9 Airplane; Structure-Mounted Airbags.” When present, the inflatable lapbelt(s) must meet special conditions no. 25-431-SC, “Boeing Model 787 Series Airplanes; Seats with Inflatable Lapbelts.”
As indicated in the special conditions above, airbags and inflatable lapbelts must be shown to not affect emergency-egress capabilities in the main aisle, cross-aisle, and passageway.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued to The Boeing Company (Boeing) for their Model 777-300ER airplane. This airplane has novel or unusual design features associated with single-occupant oblique (side-facing) seats equipped with inflatable restraints. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for occupants of seats installed at an angle of greater than 18 degrees, but substantially less than 90 degrees, to the vertical plane containing the centerline of the airplane, nor for inflatable restraints or related airbag devices. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on Boeing on August 3, 2016. We must receive your comments by September 19, 2016.
Send comments identified by docket number FAA-2016-4136 using any of the following methods:
•
•
•
•
John Shelden, Airframe and Cabin Safety, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2785; facsimile 425-227-1149.
The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane. In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received.
The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On December 24, 2015, Boeing Commercial Airplanes applied for a design change to type certificate no. T00001SE for single-occupant seats installed at an oblique angle to the vertical plane containing the centerline of the airplane, and equipped with inflatable lapbelts, in the Boeing Model 777-300ER airplane. The Model 777-300ER airplane is a wide body, swept wing, conventional tail, twin-engine, turbofan-powered, transport-category airplane.
The type certification basis for the Model 777-300ER airplane is 14 CFR part 25, effective February 1, 1965, as amended by Amendments 25-1 through 25-98, including special conditions 25-295-SC, 25-187A-SC, and 25-569-SC. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these proposed special conditions.
If the Administrator finds that the applicable airworthiness regulations (
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 777-300ER airplane, as changed, continues to meet the applicable provisions of the regulations listed in type certificate no. T00001SE or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. These regulations will be incorporated into type certificate no. T00001SE after type certification approval of the 777-300ER.
In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777-300ER airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The Boeing Model 777-300ER airplane will incorporate the following novel or unusual design features:
The seating configuration proposed by Boeing in certification plan no. 17174, revision A, “Installation of B/E Aerospace Super-Diamond Model Business Class Seats on WE736,” consists of Super Diamond model oblique (side-facing), business-class passenger seats installed in a Boeing Model 777-300ER airplane. These seats will also incorporate inflatable restraints.
The applicable airworthiness regulations do not contain adequate or appropriate safety standards for occupants of seats installed in the proposed configuration. To provide a level of safety equivalent to that afforded to occupants of forward- and aft-facing seats, additional airworthiness standards, in the form of special conditions, are necessary. Although special conditions no. 25-187A-SC, 25-295-SC, and 25-569-SC already apply to the 777-300ER, they do not directly address the complex occupant-loading conditions introduced by this oblique (side-facing) seat configuration, nor do they reflect the latest findings of on-going research.
Amendment 25-15 to part 25, dated October 24, 1967, introduced the subject of side-facing seats, and a requirement that each occupant in a side-facing seat must be protected from head injury by a safety belt and a cushioned rest that will support the arms, shoulders, head, and spine.
Subsequently, Amendment 25-20, dated April 23, 1969, clarified the definition of side-facing seats to require that each occupant of a seat that is positioned at more than an 18-degree angle to the vertical plane containing the airplane centerline must be protected from head injury by a safety belt and an energy-absorbing rest that supports the arms, shoulders, head, and spine; or by a safety belt and shoulder harness that prevents the head from contacting injurious objects. The FAA concluded that a maximum 18-degree angle would provide an adequate level of safety based on tests that were performed at the time, and thus adopted that standard.
Amendment 25-64, dated June 16, 1988, revised the emergency-landing conditions that must be considered in the design of the airplane. It revised the static-load conditions in § 25.561 and added a new § 25.562, requiring dynamic testing for all seats approved for occupancy during takeoff and landing. The intent was to provide an improved level of safety for occupants on transport-category airplanes. Because most seating on transport-category airplanes is forward-facing, the pass/fail criteria developed in Amendment 25-64 focused primarily on forward-facing seats. Therefore, the testing specified in the rule did not provide a complete measure of occupant injury in seats that are not forward-facing. However, § 25.785 does require that occupants of all seats occupied during taxi, takeoff, and landing not suffer serious injury as a result of the inertia forces specified in §§ 25.561 and 25.562.
To address recent research findings and accommodate commercial demand, the FAA developed a methodology to address all fully side-facing seats (
For shallower installation angles, the FAA has granted equivalent level of safety (ELOS) findings for oblique seat installations on the premise that an occupant's kinematics in an oblique seat during a forward impact would result in the body aligning with the impact direction. We predicted that the occupant response would be similar to an occupant of a forward-facing seat, and would produce a level of safety equivalent to that of a forward-facing seat. These ELOS findings were subject to many conditions that reflected the injury-evaluation criteria and mitigation strategies available at the time of issuance of the ELOS. However, review of dynamic test results for many of these oblique seat installations raised concerns that the premise was not correct. Potential injury mechanisms exist that are unique to oblique seats and are not mitigated by the ELOS self-alignment approach even if the occupant appears to respond similarly to a forward-facing seat.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Boeing Model 777-300ER airplane. These special conditions can be applied to oblique seats installed in accordance with Boeing certification plan no. 17174, revision A, “Installation of B/E Aerospace Super-Diamond Business Class Seats on WE736.”
The FAA will amend these special conditions, or issue new special conditions, should unusual occupant response in the required dynamic tests, or additional research into occupant-injury mechanisms, indicate that these special conditions are inadequate. Any future special conditions would include due public notice for comment.
This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability.
Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 777-300ER airplanes modified by Boeing.
In addition to the requirements of § 25.562:
Compliance with § 25.562(c)(5) is required, except that, if the anthropomorphic test device (ATD) has no apparent contact with the seat and related structure but has contact with an airbag, a HIC unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.
If a seat is installed aft of structure (
a. The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.
b. The N
c. In addition, peak upper-neck F
d. Rotation of the head about its vertical axis relative to the torso is limited to 105 degrees in either direction from forward-facing.
e. The neck must not impact any surface that would produce concentrated loading on the neck.
a. The lumbar spine tension (F
b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X-axis direction) acceleration exceeding 20g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE International (SAE) Recommended Practice J211/1, “Instrumentation for Impact Test-Part 1-Electronic Instrumentation.”
c. The occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.
Any part of the load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of the seat bottom seat-cushion supporting structure.
Axial rotation of the upper leg (about the Z-axis of the femur, per SAE Recommended Practice J211/1) must be limited to 35 degrees in the strike direction from the nominal seating position. Evaluation during rebound need not be considered.
Longitudinal tests conducted to measure the injury criteria above must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609, “A Lumbar Spine Modification to the Hybrid III ATD For Aircraft Seat Tests.” The tests must be conducted with an undeformed floor, at the most-critical yaw cases for injury, and with all lateral structural supports (
The inflatable lapbelts must meet special conditions no. 25-187A-SC, “Boeing Model 777 Series Airplanes; Seats with Inflatable Lapbelts.”
As indicated in special conditions no. 25-187A-SC, inflatable lapbelts must be shown to not affect emergency-egress capabilities in the main aisle, cross-aisle, and passageway.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Gulfstream Aerospace Corporation (Gulfstream) Model GVII-G500 airplane. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is a fly-by-wire flight-control system that governs the pitch, yaw, and roll axes of the airplane. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on Gulfstream on August 3, 2016. We must receive your comments by September 19, 2016.
Send comments identified by docket number FAA-2015-7294 using any of the following methods:
•
•
•
•
Walt Sippel, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2774; facsimile 425-227-1320.
The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On March 29, 2012, Gulfstream applied for a type certificate for their new Model GVII-G500 airplane. This transport-category, twin-engine airplane will be a business jet capable of accommodating up to 19 passengers. The maximum takeoff weight is 91,000 lbs.
Under title 14, Code of Federal Regulations (14 CFR) 21.17, Gulfstream must show that the Model GVII-G500 airplane meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-129.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, Model GVII-G500 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36. The FAA must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).
The Model GVII-G500 airplane will incorporate the following novel or unusual design feature:
A fly-by-wire flight-control system that governs the pitch, yaw, and roll axes of the airplane.
Active flight-control systems are capable of providing automatic responses to inputs from sources other than pilots. Active flight-control systems have been expanded in function, effectiveness, and reliability such that fly-by-wire flight controls, without a manual backup system to address system failures, are becoming standard equipment. As a result of these advancements in flight-control technology, the current safety standards contained in 14 CFR part 25 do not provide an adequate basis to address an acceptable level of safety for airplanes so equipped. Instead, certification of these systems has been achieved by issuance of special conditions under the provisions of § 21.16.
For example, stability-augmentation systems (SASs), and to a lesser extent load alleviation systems (LASs), have been used on transport airplanes for many years. Past approvals of these systems were based on individual findings of equivalent level of safety with existing rules and through special conditions. Advisory circular 25.672-1 was issued November 11, 1983, to provide an equivalent means of compliance under the provisions of § 21.21(b)(1) for SAS, LAS, and flutter control systems (FCSs), another type of active flight-control system.
Although autopilots are also considered active flight-control systems, their control authority has historically been limited such that the consequences of system failures could be readily counteracted by the pilot. Now, autopilot functions are integrated into the primary flight controls and given sufficient control authority to maneuver the airplane to its structural design limits. This advanced technology, with its expanded authority, requires a new approach to account for the interaction of control systems and structures.
The usual deterministic approach to defining the loads envelope contained in 14 CFR part 25 does not fully account for system effectiveness and system reliability. These automatic systems may be inoperative, or may operate in a degraded mode with less than full system authority. Therefore, it is necessary to determine the structural factors of safety and operating margins such that the joint probability of structural failures, due to application of loads during system malfunctions, is not greater than that found in airplanes equipped with earlier-technology control systems. To achieve this objective, it is necessary to define the failure conditions with their associated frequency of occurrence to determine the structural factors of safety and operating margins that will ensure an acceptable level of safety.
Earlier automatic control systems usually provided two states; either fully
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Gulfstream Model GVII-G500 airplane. Should Gulfstream apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only a certain novel or unusual design feature on one model series of airplane. It is not a rule of general applicability.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, good cause exists for adopting these special conditions upon publication in the
The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Gulfstream Model GVII-G500 airplane.
For airplanes equipped with systems that affect structural performance, either directly or as a result of a failure or malfunction, the influence of these systems and their failure conditions must be taken into account when showing compliance with the requirements of 14 CFR part 25, subparts C and D.
The following criteria must be used for showing compliance with these special conditions for airplanes equipped with flight-control systems, autopilots, stability-augmentation systems, load-alleviation systems, flutter-control systems, fuel-management systems, and other systems that either directly, or as a result of failure or malfunction, affect structural performance. If these special conditions are used for other systems, it may be necessary to adapt the criteria to the specific system.
1. The criteria defined herein only address the direct structural consequences of the system responses and performance. They cannot be considered in isolation, but should be included in the overall safety evaluation of the airplane. These criteria may, in some instances, duplicate standards already established for this evaluation. These criteria are only applicable to structure the failure of which could prevent continued safe flight and landing. Specific criteria that define acceptable limits on handling characteristics or stability requirements, when operating in the system degraded or inoperative mode, are not provided in these special conditions.
2. Depending upon the specific characteristics of the airplane, additional studies that go beyond the criteria provided in these special conditions may be required to demonstrate the airplane's capability to meet other realistic conditions, such as alternative gust or maneuver descriptions for an airplane equipped with a load-alleviation system.
3. The following definitions are applicable to these special conditions.
a.
b.
c.
d.
e.
1.
2.
a. Limit loads must be derived in all normal operating configurations of the system from all the limit conditions specified in 14 CFR part 25, subpart C (or defined by special conditions or equivalent level of safety in lieu of those specified in subpart C), taking into account any special behavior of such a system or associated functions, or any effect on the structural performance of the airplane that may occur up to the limit loads. In particular, any significant nonlinearity (rate of displacement of control surface, thresholds, or any other system nonlinearities) must be accounted for in a realistic or conservative way when deriving limit loads from limit conditions.
b. The airplane must meet the strength requirements of 14 CFR part 25 (static strength, residual strength), using the specified factors to derive ultimate loads from the limit loads defined above. The effect of nonlinearities must be investigated beyond limit conditions to ensure that the behavior of the system presents no anomaly compared to the behavior below limit conditions. However, conditions beyond limit conditions need not be considered when it can be shown that the airplane has design features that will not allow it to exceed those limit conditions.
c. The airplane must meet the aeroelastic stability requirements of § 25.629.
3.
a. At the time of occurrence. Starting from 1g level flight conditions, a realistic scenario, including pilot corrective actions, must be established to determine the loads occurring at the
i. For static-strength substantiation, these loads, multiplied by an appropriate factor of safety that is related to the probability of occurrence of the failure, are ultimate loads to be considered for design. The factor of safety is defined in Figure 1, below.
ii. For residual-strength substantiation, the airplane must be able to withstand two thirds of the ultimate loads defined in special condition 3.a.(i). For pressurized cabins, these loads must be combined with the normal operating differential pressure.
iii. Freedom from aeroelastic instability must be shown up to the speeds defined in § 25.629(b)(2). For failure conditions that result in speeds beyond V
iv. Failures of the system that result in forced structural vibrations (oscillatory failures) must not produce loads that could result in detrimental deformation of primary structure.
b. For the continuation of the flight. For the airplane in the system-failed state, and considering any appropriate reconfiguration and flight limitations, the following apply:
i. The loads derived from the following conditions (or used in lieu of the following conditions) at speeds up to V
1. The limit symmetrical maneuvering conditions specified in §§ 25.331 and 25.345.
2. the limit gust and turbulence conditions specified in §§ 25.341 and 25.345.
3. the limit rolling conditions specified in § 25.349, and the limit unsymmetrical conditions specified in §§ 25.367, and 25.427(b) and (c).
4. the limit yaw-maneuvering conditions specified in § 25.351.
5. the limit ground-loading conditions specified in §§ 25.473 and 25.491.
ii. For static-strength substantiation, each part of the structure must be able to withstand the loads in special condition 3.b.(i), multiplied by a factor of safety depending on the probability of being in this failure state. The factor of safety is defined in Figure 2, below.
If P
iii. For residual-strength substantiation, the airplane must be able to withstand two-thirds of the ultimate loads defined in paragraph 3.b.(ii) of these special conditions. For pressurized cabins, these loads must be combined with the normal operating differential pressure.
iv. If the loads induced by the failure condition have a significant effect on fatigue or damage tolerance, then their effects must be taken into account.
v. Freedom from aeroelastic instability must be shown up to a speed determined from Figure 3, below. Flutter clearance speeds V′ and V″ may be based on the speed limitation specified for the remainder of the flight using the margins defined by § 25.629(b).
If P
vi. Freedom from aeroelastic instability must also be shown up to V′ in Figure 3, above, for any probable system-failure condition, combined with any damage required or selected for investigation by § 25.571(b).
b. Consideration of certain failure conditions may be required by other sections of 14 CFR part 25 regardless of calculated system reliability. Where analysis shows the probability of these failure conditions to be less than 10
4. Failure indications. For system-failure detection and indication, the following apply:
a. The system must be checked for failure conditions, not extremely improbable, that degrade the structural capability below the level required by 14 CFR part 25, or that significantly reduce the reliability of the remaining system. As far as reasonably practicable, the flightcrew must be made aware of these failures before flight. Certain elements of the control system, such as mechanical and hydraulic components, may use special periodic inspections, and electronic components may use daily checks, in lieu of detection and indication systems, to achieve the objective of this requirement. These certification-maintenance requirements must be limited to components that are not readily detectable by normal detection-and-indication systems, and where service history shows that inspections will provide an adequate level of safety.
b. The existence of any failure condition, not extremely improbable, during flight, that could significantly affect the structural capability of the airplane, and for which the associated reduction in airworthiness can be minimized by suitable flight limitations, must be signaled to the flightcrew. For example, failure conditions that result in a factor of safety between the airplane strength and the loads of 14 CFR part 25, subpart C below 1.25, or flutter margins below V″, must be signaled to the crew during flight.
5. Dispatch with known failure conditions. If the airplane is to be dispatched in a known system-failure condition that affects structural performance, or that affects the reliability of the remaining system to maintain structural performance, then the provisions of these special conditions must be met, including the provisions of special condition 2 for the dispatched condition, and special condition 3 for subsequent failures. Expected operational limitations may be taken into account in establishing P
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Embraer S.A. (Embraer) Model EMB-545 and EMB-550 airplanes. These airplanes will have a novel or unusual design feature associated with a vision system that displays video imagery on the head-up display. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on Embraer S.A. on August 3, 2016. We must receive your comments by September 19, 2016.
Send comments identified by docket number FAA-2016-3872 using any of the following methods:
•
•
•
•
Dale Dunford, FAA, Airplane and Flightcrew Interface Branch, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2239; facsimile 425-227-1320.
The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.
In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On October 9, 2014, Embraer applied for a change to Type Certificate No. TC00062IB for a synthetic vision system (SVS) and enhanced flight vision system (EFVS) on a head-up display (HUD) in Model EMB-545 and EMB-550 airplanes. These airplanes are business jets capable of accommodating up to 9 passengers (EMB-545) or 12 passengers (EMB-550).
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Embraer must show that the Model EMB-545 and EMB-550 airplanes, as changed, continue to meet the applicable provisions of the regulations listed in Type Certificate No. TC00062IB, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type certification basis.” In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, Embraer Model EMB-545 and EMB-550 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.
The Embraer Model EMB-545 and EMB-550 airplanes will incorporate the following novel or unusual design feature: an enhanced-flight vision system and synthetic vision system that display video imagery on a head-up display.
Video display on the HUD constitutes new and unusual technology for which the FAA has no certification criteria. Section 25.773 does not permit visual distortions and reflections in the pilot's view out the airplane windshield that could interfere with the pilot's normal duties, and was not written in anticipation of such technology. Special conditions are therefore issued as prescribed under the provisions of § 21.16.
For many years the FAA has approved, on transport-category airplanes, the use of HUD that display flight symbols without a significant visual obstruction of the outside view. When the FAA began to evaluate the display of enhanced vision-system (EVS) imagery on the HUD, significant potential to obscure the outside view became apparent, contrary to the requirements of 14 CFR 25.773. This rule does not permit distortions and reflections in the pilot-compartment view, through the airplane windshield, that interferes with normal duties, and the rule was not written in anticipation of such technology. The video image potentially interferes with the pilot's ability to see the natural scene in the center of the forward field of view. Therefore, the FAA issued special conditions for such HUD/EVS installations to ensure that the level of safety required by § 25.773 would be met even when the image might partially obscure the outside view. While many of the characteristics of EVS and SVS video differ in some ways, they have one thing in common: the potential for interference with the
Although the pilot may be able to see around and through small, individual, stroke-written symbols on the HUD, the pilot may not be able to see around or through the image that fills the display without some interference of the outside view. Nevertheless, the vision-system video may be capable of meeting the required level of safety when considering the combined view of the image and the outside scene visible to the pilot through the image. It is essential that the pilot can use this combination of image and natural view of the outside scene as safely and effectively as the pilot-compartment view currently available without the vision-system image.
Because § 25.773 does not provide for any alternatives or considerations for such a new and novel system, the FAA establishes safety requirements that assure an equivalent level of safety and effectiveness of the pilot-compartment view as intended by that rule. The purpose of these special conditions is to provide the unique pilot-compartment-view requirements for the EFVS/SVS installation.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Embraer Model EMB-545 and EMB-550 airplanes. Should Embraer apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the
The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions apply to all Synthetic Vision System (SVS) and Enhanced Flight Vision System (EFVS) on Head-Up Display (HUD) installations on the Embraer Model EMB-545 and EMB-550 airplanes in lieu of the requirements of § 25.773 at Amendment 25-129:
1. The synthetic vision system (SVS) or enhanced flight vision system (EFVS) imagery on the head-up display (HUD) must not degrade the safety of flight or interfere with the effective use of outside visual references for required pilot tasks during any phase of flight in which it is to be used.
2. To avoid unacceptable interference with the safe and effective use of the pilot-compartment view, the SVS or EFVS device must meet the following requirements:
a. The SVS or EFVS design must minimize unacceptable display characteristics or artifacts (
b. Control of SVS or EFVS image-display brightness must be sufficiently effective in dynamically changing background (ambient) lighting conditions to avoid pilot distraction, impairment of the display that would distract the pilot, impairing the pilot's ability to detect and identify visual references, masking of flight hazards, or otherwise degrading task performance or safety. If automatic control for image brightness is not provided, it must be shown that a single manual setting is satisfactory for the range of lighting conditions encountered during a time-critical, high-workload phase of flight (
c. A readily accessible control must be provided that permits the pilot to immediately deactivate and reactivate display of the SVS or EFVS image on demand, without removing the pilot's hands from the primary flight controls (yoke or equivalent) or thrust control.
d. The SVS or EFVS image on the HUD must not impair the pilot's use of guidance information, or degrade the presentation and pilot awareness of essential flight information displayed on the HUD, such as alerts, airspeed, attitude, altitude and direction, approach guidance, wind-shear guidance, traffic-alert and collision-avoidance system (TCAS) resolution advisories, or unusual attitude recovery cues.
e. The SVS or EFVS image and the HUD symbols, which are spatially referenced to the pitch scale, outside view, and image, must be scaled and aligned (
f. A HUD system installed to display SVS or EFVS images must, if previously certified, continue to meet all of the requirements of the original approval.
3. The display of the SVS or EFVS image must not degrade the safety and performance of the pilot tasks associated with the use of the pilot-compartment view. Pilot tasks that must not be degraded by the SVS or EFVS image include:
a. Detection, accurate identification, and maneuvering, as necessary, to avoid traffic, terrain, obstacles, and other hazards of flight.
b. Accurate identification and utilization of visual references required for every task relevant to the phase of flight.
4. Appropriate limitations must be stated in the operating limitations section of the airplane flight manual to prohibit the use of the SVS or EFVS for functions that have not been found to be acceptable.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Boeing Model 767-300F airplane. This airplane, as modified by the FedEx Express Corporation (FedEx), will have a novel or unusual design feature associated with an advanced, enhanced flight vision system (EFVS). The EFVS consists of a head-up display (HUD) system modified to display forward-looking infrared (FLIR) imagery. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on FedEx on August 3, 2016. We must receive your comments by September 19, 2016.
Send comments identified by docket number FAA-2016-4116 using any of the following methods:
•
•
•
•
Dale Dunford, FAA, Transport Standards Staff, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2239; fax 425-227-1320; email
The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions are impracticable because the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive on or before the closing date for comments. We may change these special conditions based on the comments we receive.
On November 30, 2012, FedEx applied for a supplemental type certificate for the installation and operation of a HUD and an EFVS in the Boeing Model 767-300F airplane. The original type certificate for the 767-300F airplanes is A1NM. The Boeing Model 767-300F is a transport-category, cargo-carrying airplane that operates with a crew of two.
Under the provisions of 14 CFR 21.101, FedEx must show that the Boeing Model 767-300F airplane, as changed, continues to meet the applicable provisions of the regulations listed in type certificate no. A1NM, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type certification basis.” The regulations are listed in Type Certificate Data Sheet No. A1NM, which covers all variants of Boeing Model 767 airplanes. In addition, the certification basis includes certain special conditions and exemptions that are not relevant to these special conditions.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Model 767-300F airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19 in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The Boeing Model 767-300F airplane will incorporate the following novel or unusual design feature: An EFVS that projects a video image derived from a FLIR camera through the HUD. The EFVS image is projected in the center of
Video display on the HUD constitutes new and unusual technology for which the FAA has no certification criteria. Section 25.773 does not permit visual distortions and reflections in the pilot's view out the airplane windshield that could interfere with the pilot's normal duties, and was not written in anticipation of such technology. Special conditions are therefore issued as prescribed under the provisions of § 21.16.
For many years, the FAA has approved, on transport-category airplanes, the use of HUD that display flight symbols without a significant visual obstruction of the outside view. When the FAA began to evaluate the display of enhanced vision-system (EVS) imagery on the HUD, significant potential to obscure the outside view became apparent, contrary to the requirements of 14 CFR 25.773. This rule does not permit distortions and reflections in the pilot-compartment view, through the airplane windshield, that interfere with normal duties, and the rule was not written in anticipation of such technology. The video image potentially interferes with the pilot's ability to see the natural scene in the center of the forward field of view. Therefore, the FAA issued special conditions for such HUD/EVS installations to ensure that the level of safety required by § 25.773 would be met even when the image might partially obscure the outside view. EVS video has the potential for causing interference with the outside view through the airplane windshield.
Although the pilot may be able to see around and through small, individual, stroke-written symbols on the HUD, the pilot may not be able to see around or through the image that fills the display without some interference of the outside view. Nevertheless, the EVS video may be capable of meeting the required level of safety when considering the combined view of the image and the outside scene visible to the pilot through the image. It is essential that the pilot can use this combination of image and natural view of the outside scene as safely and effectively as the pilot-compartment view currently available without the vision-system image.
Because § 25.773 does not provide for any alternatives or considerations for such a new and novel system, the FAA establishes safety requirements that assure an equivalent level of safety and effectiveness of the pilot-compartment view as intended by that rule. The purpose of these special conditions is to provide the unique pilot-compartment-view requirements for the EFVS installation.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Boeing Model 767-300F airplane. Should FedEx apply at a later date for a supplemental type certificate to modify any other model included on type certificate no. A1NM to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on Boeing 767-300F airplanes. It is not a rule of general applicability and it affects only the applicant who applied to the FAA for approval of these features on the airplane.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type-certification basis for Boeing Model 767-300F airplanes modified by FedEx.
1. Enhanced flight vision system (EFVS) imagery on the head-up display (HUD) must not degrade the safety of flight or interfere with the effective use of outside visual references for required pilot tasks during any phase of flight in which it is to be used.
2. To avoid unacceptable interference with the safe and effective use of the pilot compartment view, the EFVS device must meet the following requirements:
a. The EFVS design must minimize unacceptable display characteristics or artifacts (
b. Automatic control of EFVS display brightness must be sufficiently effective, in dynamically changing background (ambient) lighting conditions, to prevent full or partial blooming of the display that would distract the pilot, impair the pilot's ability to detect and identify visual references, mask flight hazards, or otherwise degrade task performance or safety. If automatic control for image brightness is not provided, it must be shown that a single manual setting is satisfactory for the range of lighting conditions encountered during a time-critical, high-workload phase of flight (
c. A readily accessible control must be provided that permits the pilot to immediately deactivate and reactivate display of the EFVS image on demand without removing the pilot's hands from the primary flight controls (yoke or equivalent) or thrust control.
d. The EFVS image on the HUD must not impair the pilot's use of guidance information, or degrade the presentation and pilot awareness of essential flight information displayed on the HUD, such as alerts, airspeed, attitude, altitude and direction, approach guidance, windshear guidance, traffic alert and collision avoidance system (TCAS) resolution advisories, or unusual attitude recovery cues.
e. The EFVS image and the HUD symbols, which are spatially referenced to the pitch scale, outside view, and image, must be scaled and aligned (
f. A HUD system used to display EFVS images must, if previously certified, continue to meet all of the requirements of the original approval.
3. The safety and performance of the pilot tasks associated with the use of the pilot compartment view must not be degraded by the display of the EFVS image. Pilot tasks that must not be degraded by the EFVS image include:
a. Detection, accurate identification, and maneuvering, as necessary, to avoid traffic, terrain, obstacles, and other hazards of flight.
b. Accurate identification and utilization of visual references required for every task relevant to the phase of flight.
4. Use of EFVS for instrument approach operations must be in accordance with the provisions of § 91.175(l) and (m), and § 121.651, where applicable. Appropriate limitations must be stated in the operating limitations section of the airplane flight manual to prohibit the use of the EFVS for functions that have not been found to be acceptable.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Boeing Model 747-8 airplane. This airplane, as modified by Associated Air Center, will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is an airbag system to limit axial rotation of the upper leg, due to leg flail, of occupants in single-place side-facing seats. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on Associated Air Center on August 3, 2016. We must receive your comments by September 19, 2016.
Send comments identified by docket number FAA-2016-7851 using any of the following methods:
•
•
•
•
Jayson Claar, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2194; facsimile 425-227-1320.
The substance of these special conditions has been subject to the public comment process with no comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On February 15, 2014, Associated Air Center applied for a supplemental type certificate for inflatable airbag systems in the Boeing Model 747-8 airplane. This airplane, currently approved under type certificate no. A20WE, is a private, not-for-hire, not-for-common-carriage business jet with a head-of-state interior. This airplane has a maximum passenger seating capacity of 113. Twelve of the passenger-seating positions include single-place side-facing seats, each of which include an airbag system to protect against leg-flail injuries.
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Associated Air Center must show that the Model 747-8 airplane, as changed, continues to meet the applicable provisions of the regulations listed in type certificate no. A20WE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 747-8 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The Boeing Model 747-8 airplane, as modified by Associated Air Center, will incorporate the following novel or unusual design features: An airbag system to limit axial rotation of the upper leg, due to leg flail, of occupants in single-place side-facing seats.
The Boeing Model 747-8 airplane has an interior configuration that includes single-place side-facing seats. These seats include an airbag system in the shoulder belt, per Special Conditions no. 25-606-SC; and an airbag system to limit the axial rotation of the upper leg (femur).
Side-facing seats are considered a novel design for transport-category airplanes that include title 14, Code of Federal Regulations (14 CFR) part 25, Amendment 25-64, in their certification bases and were not anticipated when those airworthiness standards were issued. Therefore, the existing regulations do not provide adequate or appropriate safety standards for occupants of side-facing seats. The FAA issued Special Conditions no. 25-606-SC to address the certification of single- and multiple-place side facing seats for Boeing 747-8 airplanes. Those special conditions include condition 2(e), which requires the axial rotation of the upper-leg (femur) to be limited to 35 degrees in either direction from the nominal seat position. Associated Air Center has developed an airbag system that will be installed close to the floor and that is designed to limit the axial rotation of the upper-leg.
Serious leg injuries, such as femur fracture, can occur in aviation side-facing seats, injuries that could threaten the occupant's life directly or eliminate the occupant's ability to evacuate the airplane. Limiting upper-leg axial rotation to a conservative limit of 35 degrees (approximately the 50-percentile range of motion) should also limit the risk of serious leg injury. Research suggests that the angle of rotation can be determined by observing lower-leg flailing in typical high-speed video of the dynamic tests. Alternately, the anthropomorphic test dummy could be instrumented to directly measure upper-leg axial rotation. This requirement complies with the intent of the § 25.562(a) injury criteria in preventing serious leg injury.
To comply with special condition 2(e) on some seat positions, Associated Air Center proposes to install leg-flail airbags. This airbag is not addressed in Special Conditions no. 25-606-SC. Therefore, the FAA must issue new special conditions to address this leg-flail airbag installation. These special conditions are similar to other special conditions previously issued for airbags.
Special Conditions no. 25-606-SC for the airbag system in the shoulder belt are based on previous special conditions for airbag systems on forward-facing seat lap belts with some changes to address the specific issues of side-facing seats.
These special conditions for the leg-flail airbag contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Boeing Model 747-8 airplane as modified by Associated Air Center. Should Associated Air Center apply at a later date for a supplemental type certificate to modify any other model included on type certificate no. A20WE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
The substance of these special conditions previously has been subjected to the notice and comment period and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and good cause exists for adopting these special conditions upon publication in the
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 747-8 airplanes modified by Associated Air Center.
In addition to the requirements of §§ 25.562 and 25.785, and Special Conditions no. 25-606-SC, the following special conditions are part of the type certification basis for Boeing 747-8 airplanes with leg-flail airbag systems installed on side-facing seats.
1. For seats with leg-flail airbag systems, these systems must deploy and provide protection under crash conditions where it is necessary to prevent serious injury. The means of protection must take into consideration a range of stature from a 2-year-old child to a 95th-percentile male. At some buttock popliteal length and effective seat-bottom depth, the lower legs will not be able to form a 90-degree angle with the upper leg; at this point, the lower-leg flail would not occur. The leg-flail airbag system must provide a consistent approach to prevention of leg flail throughout that range of occupants whose lower legs can form a 90-degree angle relative to the upper legs when seated upright in the seat. Items that need to be considered include, but are not limited to, the range of occupants' popliteal height, the range of occupants' buttock popliteal length, the design of the seat effective height above the floor, and the effective depth of the seat bottom cushion.
2. The leg-flail airbag system must not be susceptible to inadvertent
3. Deployment of the leg-flail airbag system must not introduce injury mechanisms to the seated occupant, or result in injuries that could impede rapid egress.
4. Inadvertent deployment of the leg-flail airbag system, during the most critical part of the flight, must either meet the requirement of § 25.1309(b), or not cause a hazard to the airplane or its occupants. This also includes preventing inadvertent airbag deployment from a static discharge.
5. The leg-flail airbag system must not impede rapid egress of occupants from the airplane 10 seconds after airbag deployment.
6. The leg-flail airbag system must be protected from lightning and high-intensity radiated fields (HIRF). The threats to the airplane specified in existing regulations regarding lightning (§ 25.1316) and HIRF (§ 25.1317) are incorporated by reference for the purpose of measuring lightning and HIRF protection.
7. The leg-flail airbag system must function properly after loss of normal airplane electrical power, and after a transverse separation of the fuselage at the most critical location. A separation at the location of the leg-flail airbag system does not have to be considered.
8. The leg-flail airbag system must not release hazardous quantities of gas, sharp injurious metal fragments, or particulate matter into the cabin.
9. The leg-flail airbag system installation must be protected from the effects of fire such that no hazard to occupants will result.
10. A means must be available to verify the integrity of the leg-flail airbag system's activation system prior to each flight, or the leg-flail airbag system's activation system must reliably operate between inspection intervals. The FAA considers that the loss of the leg-flail airbag system's deployment function alone (
11. The airbag inflatable material may not have an average burn rate of greater than 2.5 inches per minute when tested using the horizontal flammability test defined in part 25, appendix F, part I, paragraph (b)(5).
12. The leg-flail airbag system, once deployed, must not adversely affect the emergency-lighting system (
Federal Aviation Administration (FAA), DOT.
Final rule; correction.
The FAA is correcting an airworthiness directive (AD) that published in the
This final rule is effective August 16, 2016.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 16, 2016 (81 FR 44983, July 12, 2016).
For Airbus service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
For Hamilton Sundstrand service information identified in this final rule, contact Hamilton Sundstrand, Technical Publications, Mail Stop 302-9, 4747 Harrison Avenue, P.O. Box 7002, Rockford, IL 61125-7002; telephone 860-654-3575; fax 860-998-4564; email
You may view this referenced 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. It is also available on the Internet at
You may examine the AD docket on the Internet at
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149.
Airworthiness Directive 2016-14-01, Amendment 39-18582 (81 FR 44983, July 12, 2016) (“AD 2016-14-01”), currently requires identification of the manufacturer, part number, and serial number of the ram air turbine (RAT), and re-identification and modification of the RAT if necessary, for certain Airbus Model A330-200 Freighter series airplanes; Model A330-200 and A330-300 series airplanes; Model A340-200 and A340-300 series airplanes; Model A340-500 series airplanes; and Model A340-600 series airplanes.
As published, table 1 to paragraph (j) of the regulatory text contains typographical errors in two part numbers. Table 1 to paragraph (j) of the AD incorrectly refers to RAT P/Ns 1720934C and 1720934D. Those part numbers should have been 1702934C and 1702934D.
Airbus has issued the following service information, which describes procedures for identifying the supplier, part number, and serial number of the
• Service Bulletin A330-29-3126, dated June 12, 2014.
• Service Bulletin A340-29-4097, dated June 12, 2014.
• Service Bulletin A340-29-5025, dated June 16, 2014.
Hamilton Sundstrand has issued Service Bulletins ERPS06M-29-21, Revision 1, dated April 14, 2015; and ERPS33T-29-7, dated June 6, 2014. This service information describes procedures for identifying the affected RAT actuator and RAT part numbers and serial numbers, modifying affected actuators, and re-identifying affected RAT actuators and RATs.
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 document corrects an error and correctly adds the AD as an amendment to 14 CFR 39.13. Although no other part of the preamble or regulatory information has been corrected, we are publishing the entire rule in the
The effective date of this AD remains August 16, 2016.
Since this action only corrects typographical errors, it has no adverse economic impact and imposes no additional burden on any person. Therefore, we have determined that notice and public procedures are unnecessary.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD becomes effective on August 16, 2016.
This AD affects the ADs specified in paragraphs (b)(1), (b)(2), and (b)(3) of this AD.
(1) AD 2012-21-19, Amendment 39-17235 (77 FR 65812, October 31, 2012) (“AD 2012-21-19”).
(2) AD 2012-21-20, Amendment 39-17236 (77 FR 65799, October 31, 2012) (“AD 2012-21-20”).
(3) AD 2016-04-01, Amendment 39-18395 (81 FR 8134, February 18, 2016) (“AD 2016-04-01”).
This AD applies to the airplanes identified in paragraphs (c)(1) through (c)(7) of this AD, certificated in any category.
(1) Airbus Model A330-223F and -243F airplanes, all manufacturer serial numbers; except those on which Airbus Modification 204067 has been embodied in production.
(2) Airbus Model A330-201, -202, -203, -223, and -243 airplanes, all manufacturer serial numbers; except those on which Airbus Modification 204067 has been embodied in production.
(3) Airbus Model A330-301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes, all manufacturer serial numbers; except those on which Airbus Modification 204067 has been embodied in production.
(4) Airbus Model A340-211, -212, and -213, airplanes, all manufacturer serial numbers.
(5) Airbus Model A340-311, -312, and -313 airplanes, all manufacturer serial numbers.
(6) Airbus Model A340-541 airplanes, all manufacturer serial numbers.
(7) Airbus Model A340-642 airplanes, all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 29, Hydraulic Power.
This AD was prompted by a report indicating that, during an operational test of a ram air turbine (RAT), the RAT did not deploy in automatic mode. We are issuing this AD to prevent non-deployment of the RAT, which, if preceded by a total engine flame-out, or during a total loss of normal electrical power generation, could result in reduced control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
For Airbus Model A330-200 Freighter series airplanes, Model A330-200 and -300 series airplanes, and Model A340-200 and -300 series airplanes: Within 30 months after the effective date of this AD, identify the supplier, part number, and serial number of the installed RAT actuator, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014; as applicable.
(1) If the supplier identified is Arkwin Industries, and the identified RAT actuator part number and serial number are listed in Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, and the serial number is included in table 2 of Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, with a description of “correctly shimmed”: Within 30 months after the effective date of this AD, re-identify the actuator and the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014; as applicable.
(2) If the supplier identified is Arkwin Industries, and the identified actuator RAT part number and serial number are listed in Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, and the serial number is included in table 2 of Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, with a description of “incorrectly shimmed”: Within 30 months after the effective date of this AD, remove the actuator from the RAT, install a modified actuator, and re-identify the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014; as applicable.
(3) If the supplier identified is Arkwin Industries, and the identification plate for the RAT actuator is missing, or the part number and serial number are not listed in Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015: Within 30 months after the effective date of this AD, remove the actuator from the RAT, install a modified actuator, and re-identify the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014; as applicable.
For Airbus Model A340-500 and -600 airplanes: Within 30 months after the effective date of this AD, identify the part number and serial number of the installed RAT actuator, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.
(1) If the identified RAT actuator part number and serial number are listed in Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, and the serial number is included in table 2 of Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, with a description of “correctly shimmed”: Within 30 months after the effective date of this AD, re-identify the actuator and the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.
(2) If the identified RAT actuator part number and serial number are listed in Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, and the serial number is included in table 2 of Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, with a description of “incorrectly shimmed”: Within 30 months after the effective date of this AD, remove the actuator from the RAT, install a modified actuator, and re-identify the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.
(3) If the identification plate for the RAT actuator is missing, or the part number and serial number are not listed in Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014: Within 30 months after the effective date of this AD, remove the actuator from the RAT, install a modified actuator, and re-identify the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.
(1) For Airbus Model A330-200 Freighter, A330-200, and A330-300 series airplanes; and Model A340-200 and -300 series airplanes: Accomplishment of the actions required by paragraph (g)(1), (g)(2), or (g)(3) of this AD constitutes compliance with the requirements of paragraph (g)(1) of AD 2012-21-19, paragraph (g) of AD 2012-21-20, and paragraphs (g), (h), and (i) of AD 2016-04-01, for that airplane only.
(2) For Airbus Model A340-500 and -600 series airplanes: Accomplishment of the actions required by paragraphs (h)(1), (h)(2), and (h)(3) of this AD constitutes compliance with the requirements of paragraphs (h)(1) and (h)(2) of AD 2012-21-20, and paragraph (j) of 2016-04-01, for that airplane only.
As of the effective date of this AD, no person may install any RAT actuator or any RAT having a part number identified in table 1 to paragraph (j) of this AD on any airplane, unless it meets the conditions specified in paragraph (j)(1) or (j)(2) of this AD, as applicable.
(1) For Airbus Model A330-200 Freighter series airplanes; Model A330-200, and A330-300 series airplanes; and Model A340-200 and -300 series airplanes: The RAT actuator or RAT has a serial number listed as affected and modified in Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, and the RAT has been re-identified in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014.
(2) For Airbus Model A340-500 and -600 series airplanes: The RAT actuator or the RAT has a serial number listed as affected and modified in Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, and the RAT has been re-identified in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.
(1) This paragraph provides credit for the RAT and RAT actuator identification specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD if that identification was performed before the effective date of this AD using Hamilton Sundstrand Service Bulletin ERPS06M-29-21, dated May 27, 2014, which is not incorporated by reference in this AD.
(2) This paragraph provides credit for the RAT or RAT actuator identification and modification specified in paragraph (j)(1) of this AD, if those actions were performed before the effective date of this AD using Hamilton Sundstrand Service Bulletin ERPS06M-29-21, dated May 27, 2014, which is not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0008, dated January 15, 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)(4) and (n)(5) 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.
(3) The following service information was approved for IBR on August 16, 2016 (81 FR 44983, July 12, 2016).
(i) Airbus Service Bulletin A330-29-3126, dated June 12, 2014.
(ii) Airbus Service Bulletin A340-29-4097, dated June 12, 2014.
(iii) Airbus Service Bulletin A340-29-5025, dated June 16, 2014.
(iv) Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015.
(v) Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014.
(4) For Airbus service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
(5) For Hamilton Sundstrand service information identified in this AD, contact Hamilton Sundstrand, Technical Publications, Mail Stop 302-9, 4747 Harrison Avenue, P.O. Box 7002, Rockford, IL 61125-7002; telephone 860-654-3575; fax 860-998-4564; email
(6) 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.
(7) 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 Energy Regulatory Commission, DOE.
Correcting amendment.
This document contains corrections to the final regulations that became effective November 3, 2008 (with implementation of the requirements beginning April 1, 2010), as published in the subsequent editions of the Code of Federal Regulations, including the 2015 edition.
Richard Wartchow, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: 202-502-6000.
The Commission amended 18 CFR 154.112(a), addressing the filing of “special rate schedules,” reflecting special operating arrangements previously certificated pursuant to part 157 of the Commission's regulations (such as for the exchange of natural gas).
As published in the 2015 edition of the Code of Federal Regulations, the final regulations (effective November 3, 2008) contained an error. Order No. 714 revised the fourth, fifth and sixth sentences to reflect new filing requirements. However, the published version of 18 CFR 154.112(a) incorrectly retained language from the earlier version that should have been superseded. The Commission did not intend to retain the superseded sentences. This correcting amendment removes the incorrectly-retained language. This correction does not affect 18 CFR 154.112(b) which remains unchanged.
Natural gas, Pipelines, Reporting and record-keeping requirements, Natural gas companies, Rate schedules and tariffs.
Accordingly, 18 CFR part 154 is corrected by making the following correcting amendments:
15 U.S.C. 717-717w; 31 U.S.C. 9701; 42 U.S.C. 7102-7352.
(a) The Commission may permit a special rate schedule to be filed in the form of an agreement in the case of a special operating arrangement, previously certificated pursuant to part 157 of this chapter, such as for the exchange of natural gas. The special rate schedule must contain a title page showing the parties to the agreement, the date of the agreement, a brief description of services to be rendered, and the designation: “Rate Schedule X-[number].” Special rate schedules may not contain any supplements. Modifications must be made by inserting revised sheets, sections or the entire document as appropriate. Special rate schedules must be included in a separate volume of the tariff. Each such separate volume must contain a table of contents which is incorporated as a sheet or section in the open access transmission tariff.
Social Security Administration.
Final rule.
We are extending the expiration dates of the following body systems in the Listing of Impairments (listings) in our regulations: Musculoskeletal System, Cardiovascular System, Digestive System, and Skin Disorders. We are making no other revisions to these body systems in this final rule. This extension ensures that we will continue to have the criteria we need to evaluate impairments in the affected body systems at step three of the sequential evaluation processes for initial claims and continuing disability reviews.
This final rule is effective on August 3, 2016.
Cheryl A. Williams, Director, Office of Medical Policy, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-1020. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213, or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at
We use the listings in appendix 1 to subpart P of part 404 of 20 CFR at the third step of the sequential evaluation
In this final rule, we are extending the dates on which the listings for the following four body systems will no longer be effective as set out in the following chart:
We continue to revise and update the listings on a regular basis, including those body systems not affected by this final rule.
We follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in promulgating regulations. Section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5). Generally, the APA requires that an agency provide prior notice and opportunity for public comment before issuing a final regulation. The APA provides exceptions to the notice-and-comment requirements when an agency finds there is good cause for dispensing with such procedures because they are impracticable, unnecessary, or contrary to the public interest.
We have determined that good cause exists for dispensing with the notice and public comment procedures. 5 U.S.C. 553(b)(B). This final rule only extends the date on which four body system listings will no longer be effective. It makes no substantive changes to our rules. Our current regulations
In addition, for the reasons cited above, we find good cause for dispensing with the 30-day delay in the effective date of this final rule. 5 U.S.C. 553(d)(3). We are not making any substantive changes to the listings in these body systems. Without an extension of the expiration dates for these listings, we will not have the criteria we need to assess medical impairments in these four body systems at step three of the sequential evaluation processes. We therefore find it is in the public interest to make this final rule effective on the publication date.
We consulted with the Office of Management and Budget (OMB) and determined that this final rule does not meet the requirements for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB did not review it. We also determined that this final rule meets the plain language requirement of Executive Order 12866.
We certify that this final rule does not have a significant economic impact on a substantial number of small entities because it affects only individuals. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.
These rules do not create any new or affect any existing collections and, therefore, do not require Office of Management and Budget approval under the Paperwork Reduction Act.
Administrative practice and procedure, Blind, Disability benefits, Old-age, Survivors and Disability Insurance, Reporting and recordkeeping requirements, Social Security.
For the reasons set out in the preamble, we are amending Appendix 1 to subpart P of part 404 of chapter III of title 20 of the Code of Federal Regulations as set forth below.
Secs. 202, 205(a)-(b) and (d)-(h), 216(i), 221(a), (i), and (j), 222(c), 223, 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 405(a)-(b) and (d)-(h), 416(i), 421(a), (i), and (j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).
2. Musculoskeletal System (1.00 and 101.00): January 26, 2018.
5. Cardiovascular System (4.00 and 104.00): January 26, 2018.
6. Digestive System (5.00 and 105.00): January 26, 2018.
9. Skin Disorders (8.00 and 108.00): January 26, 2018.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is promulgating revisions to its Regional Consistency regulations to more clearly address the implications of adverse federal court decisions that result from challenges to locally or regionally applicable actions. Specifically, the EPA is introducing a narrow procedural exception under which an EPA Regional office no longer needs to seek Headquarters concurrence to diverge from national policy in geographic areas covered by such an adverse court decision. The revisions will help to foster overall fairness and predictability regarding the scope and impact of judicial decisions under the Clean Air Act (CAA or Act).
This final rule is effective on September 2, 2016.
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2014-0616. All documents in the docket are listed on the
For further general information on this rulemaking, contact Mr. Greg Nizich, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency (C504-03), Research Triangle Park, NC 27711, by phone at (919) 541-3078, or by email at
Entities potentially affected directly by this final rulemaking include the EPA and any state/local/tribal governments implementing delegated EPA programs. Entities potentially affected indirectly by this final rule include owners and operators of sources of air emissions that are subject to CAA regulations.
In addition to being available in the docket, an electronic copy of this notice will be posted at:
The information presented in this document is organized as follows:
On August 19, 2015, the EPA proposed revisions to the Regional Consistency regulations. The preamble to the proposal provided a history of the Regional Consistency regulations, as well as a discussion of a recent D.C. Circuit Court decision,
The 60-day public comment period for the proposed rule was extended 15 days in response to commenters' requests and closed on November 3, 2015. In Section III of this document, we briefly summarize the revisions and summarize and respond to significant comments.
In this action, we are making three specific revisions to the general consistency policy reflected in the Regional Consistency regulations, 40 CFR part 56, to accommodate the implications of judicial decisions addressing locally or regionally applicable actions. First, we are revising 40 CFR 56.3 to add a provision to acknowledge an exception to the “policy” of uniformity to provide that a decision of a federal court adverse to the EPA that arises from a challenge to locally or regionally applicable actions will not automatically apply uniformly nationwide. This ensures that only decisions of the U.S. Supreme Court and decisions of the United States Court of Appeals for the D.C. Circuit Court that arise from challenges to “nationally applicable regulations . . . or final action” will apply uniformly to the challenged regulations or action nationwide in all instances.
In the proposed rule, we explain in detail why the revisions are reasonable and consistent with general principles of common law and the CAA.
As explained more fully in the proposed rule, federal courts are courts of limited jurisdiction and only have the authority to hear and decide cases granted to them by Congress. A court of appeals generally hears appeals from the district courts located within its circuit, and the circuit is delineated by the states it contains. As a general matter, while an opinion from one circuit court of appeals may be persuasive precedent, it is not binding on other courts of appeals.
By revising the regulations in part 56 to fully accommodate intercircuit nonaquiescence, the EPA is acting consistently with the purpose of the federal judicial system by allowing the robust percolation of case law through the circuit courts until such time as U.S. Supreme Court review is appropriate.
Various commenters stated that intercircuit nonaquiescence is inappropriate or bad policy. One commenter stated that the EPA's preference for pursuing intercircuit nonacquiescence to promote judicial resolution is not the appropriate approach. The commenter said that the current Regional Consistency regulations allow for judicial appeals, but also ensure uniformity pending the resolution of conflicting court opinions. The commenter also noted that it is uncertain whether ultimate resolution of circuit splits will ever occur under the proposed revisions. The commenters cited to the EPA's reference to the U.S. Supreme Court's review of
A couple of commenters noted that some courts, as well as law review articles and legal commentary, have taken an unfavorable view of the doctrine of intercircuit nonacquiescence. The commenters state that the EPA failed to account for the criticisms in its proposal notice. They also took the position that the doctrine is particularly ill-suited for the CAA and its myriad of regulations.
Another commenter stated that the EPA's proposal to follow intercircuit nonacquiescence is an attempt to refuse to adjust policies in the face of clear, adverse judicial decisions. The commenter suggested that if the EPA disagrees with a court over a matter of enormous import, then the issue should either be elevated to the U.S. Supreme Court or addressed in rulemaking reviewable by the D.C. Circuit.
One commenter argued that intercircuit nonacquiescence is not the only path to judicial resolution. Rather, following an adverse decision the EPA could apply a policy change nationwide and allow the various circuits courts to review that new interpretation, while maintaining consistency in the meantime.
The EPA disagrees with the commenters; the approach advocated by these commenters would grant every court unlimited nationwide jurisdiction. Rather than being merely persuasive, a decision in one circuit thus would become binding precedent in other circuits; such a result is inconsistent
In response to those commenters who claim the EPA failed to account for arguments against intercircuit nonacquiescence, the EPA disagrees. The fact that the EPA reaches a different conclusion regarding the benefits of intercircuit nonacquiescence does not mean that the EPA has failed to consider all sides of the argument. Moreover, as explained more fully in Section III.B.2 of this document, the EPA's position recognizes the unique aspects of CAA § 307(b) and its specific placement of review of nationally applicable regulations and policies in the D.C. Circuit.
The EPA has reviewed the case law and law review articles cited by the commenters and notes that some of the commenters appear to confuse the concept of
While some commenters stated that intercircuit nonacquiescence is particularly ill-fitted to the CAA because of its myriad of regulations, the EPA concludes that it is the vast array of regulations which makes these revisions appropriate. A facility may already have to track compliance with a variety of CAA regulations, and the revisions allow that facility to presume that the national interpretation or policy applicable to those regulations will continue to apply to it, unless a court with jurisdiction over the facility issues a court decision or the EPA undertakes appropriate procedures to change that national interpretation or policy. It arguably would be more burdensome on regulated entities to track not only the national interpretation of all the regulations and policies that apply to their facilities, but also all the court decisions across the country regarding those regulations or policies. These revisions to the Regional Consistency rule are intended to provide, as much as possible, a stable policy environment for facilities.
The approach suggested by one commenter that the EPA could provide uniformity by applying an adverse court decision nationally, without otherwise changing the underlying national policy or interpretation, is not feasible when different circuits issue different interpretations. When circuit splits occur, the EPA would have to apply different interpretations in the conflicting circuits; the only question is which interpretation applies in those circuits that had not ruled on the issue. The final revisions to the Regional Consistency regulations answer this question by establishing the presumption that the EPA will continue to apply the national policy nationwide, except for those geographic areas impacted by the adverse decision. However, the approaches set forth by commenters fail to address the situation when a second court addresses an issue already ruled on by another court, and issues a conflicting decision. The EPA's final revisions account for this possibility by maintaining national policies nationwide, except in those limited geographic areas covered by adverse court decisions. A particular advantage of these revisions is that they can be implemented in a predictable and straightforward manner regardless of the number of lower court decisions or the potential conflicts among those decisions.
To the extent commenters are concerned that circuit splits would never be resolved by the U.S. Supreme Court, this possibility is not caused by, or unique to, the revised Regional Consistency regulations. First, as noted in the proposed rule, the U.S. Supreme Court is more likely to grant review if such a split between two or more circuits occurs. 80 FR 50255. Second,
We disagree with the commenter who stated that the revisions are an attempt by the EPA to ignore adverse decisions.
Revisions ensure that the Regional Consistency regulations are in harmony with the CAA's judicial review provisions at section 307(b). The ability of the various courts of appeals to hear appeals of decisions of the EPA is specifically addressed in the statute. In 1977, at the same time it added the directive for the EPA to promulgate what would ultimately become the Regional Consistency regulations, Congress amended the Act to ensure that the D.C. Circuit Court, and no other circuit courts, would review nationally applicable regulations. By placing review of nationally applicable decisions in the D.C. Circuit Court alone, Congress struck the balance between the countervailing values of improved development of the law on the one hand and national uniformity on the other. At the same time, Congress left the door open to intercircuit conflicts by granting jurisdiction over locally or regionally applicable final actions to the regionally-based courts of appeal. These revisions maintain the balance that Congress struck in CAA section 307(b)(1). There is nothing in the language or intent of CAA § 301(a)(2) that trumps the clear statutory directive of CAA § 307(b)(1) establishing which courts have jurisdiction over which final agency actions.
A few commenters suggested that if the EPA is concerned about local court decisions impacting national policy, the EPA should have those cases transferred to the D.C. Circuit for decision. The commenters stated that CAA § 307(b)(1) requires final actions “of nationwide scope or effect” be heard by the D.C. Circuit. The commenters contended that this provision, in combination with the existing Regional Consistency regulations, is enough to ensure fairness and uniformity in the application of policies nationwide.
One commenter stated that intercircuit nonacquiescence is in conflict with CAA § 307(b)(1), through which Congress tried to prevent the very intercircuit conflicts that the proposed revisions will allow. The commenter noted that if locally and regionally applicable actions with nationwide scope and effect are properly heard by the D.C. Circuit, there should be relatively few situations where a circuit court addresses an issue that can create inconsistency in the interpretation or implementation of CAA requirements. Another commenter contended that CAA § 307(b) does not stand for the proposition that the EPA can ignore decisions of non-D.C. Circuit courts simply because they arose in the context of a permitting decision. In fact, they maintain, CAA § 301 stands for the opposite proposition.
The EPA agrees that CAA § 307(b)(1) requires final actions “of nationwide scope or effect” be heard by the D.C. Circuit. This may include regional rulemaking that the EPA has identified and designated as having national scope and effect. However, when the EPA is applying regulations of nationwide scope to a particular circumstance, another appropriate circuit court should hear that decision of local or regional impact.
We agree with commenters that if the D.C. Circuit were the only court to rule on the reasonableness of the EPA's interpretation of its national regulations, there would be very little need for intercircuit nonacquiescence because the only action being reviewed by the court would be the EPA's application of that interpretation to the facts of the case. However, sometimes a court other than the D.C. Circuit (or U.S. Supreme Court) renders an adverse decision that rejects the EPA's interpretation of nationally applicable regulations in a manner that could be argued to have general rather than merely case-specific implications. This can happen, for example, where the court does not merely find that the facts do not support the EPA's application of national policy, but instead finds fault with the national policy itself. The Sixth Circuit decision in
It would be contrary to the division of responsibility among the circuit courts that Congress established in CAA § 307(b) for the EPA to eliminate their review by moving any case that could potentially affect national policy to the D.C. Circuit. Such an approach also would disrupt the timeline for review created by the CAA. Challenges to nationally applicable regulations must
Finally, the EPA is not ignoring decisions of other circuits by revising the Regional Consistency regulations. Rather, these revisions help to ensure that we are clearly following the applicable law of the circuit in the geographic areas covered by the decision. But the EPA also is respecting the judicial review provisions of the CAA by limiting decisions reviewing locally or regionally applicable actions to those locations and regions covered by the circuit court.
The revisions also are consistent with CAA § 301. As described in the proposed rule, § 301(a)(2) requires the EPA Administrator to develop regulations to “assure fairness and uniformity” of agency actions. Notably, there is nothing in the text of CAA § 301(a)(2) or its limited legislative history that suggests Congress intended to either upset the balance Congress struck when establishing judicial review provisions in CAA § 307, or disrupt the general principles of common law that have allowed for the percolation of issues up through the various circuit courts, as discussed previously. Section 301(a)(2) of the Act does not specifically address how the agency should respond to adverse court decisions.
In addition, the text of CAA § 301(a)(2)(A) necessitates a balance between uniformity and fairness; however, promoting either one of these attributes does not always guarantee maximizing the other attribute in all circumstances. These revisions would ensure the EPA has the flexibility to maintain that balance, as appropriate.
Several commenters maintained that the EPA's proposed amendments to the Regional Consistency regulations are inconsistent with the clear and unambiguous language of CAA § 301(a)(2). The commenters stated that this provision requires the EPA to promulgate rules establishing “general applicable procedures and policies for Regional officers and employees . . . to follow” that are designed to “assure fairness and uniformity in the criteria, procedures, and policies” applied by the EPA Regional offices. The commenters contended that the EPA's proposed rule codifies an impermissible exception to uniformity in the form of intercircuit nonacquiescence.
A few commenters pointed to the legislative history associated with the passage of CAA § 301(a)(2) and noted that Congress clearly intended there to be national consistency in implementing core CAA programs. One commenter noted that Congress's directive in CAA § 301 was particularly critical in the prevention of significant deterioration (PSD) and new source review (NSR) permitting programs, as well as other national standards (
A few commenters also stated that even if CAA § 301 were ambiguous, the EPA's proposed amendments to the Regional Consistency regulations are unreasonable. The commenters noted that the D.C. Circuit vacated the EPA's
Two commenters noted that the D.C. Circuit has recognized the call for uniformity as well in
One commenter stated that the EPA's proposal is inconsistent with CAA § 301(a)(1), which provides that the Administrator may delegate authority when it is “necessary or expedient.” The commenter stated that if the Administrator delegates her authority to Regional Administrators who make inconsistent decisions, the delegation would not be expedient and therefore would violate CAA § 301(a)(1). The commenter further maintained that the EPA incorrectly stated in the proposal notice that the current Regional Consistency regulations that require regional officials to “seek concurrence” from Headquarters could result in inconsistent policies among Regional offices. Proposal at 50258. According to this commenter, this existing mechanism ensures consistency and does not condone variation between Regional offices.
Two commenters argued that the EPA's proposal to incorporate intercircuit nonacquiescence into the Regional Consistency regulations creates “irrationality” in the rulemaking process. The commenters argue that by allowing her delegatees (
The EPA disagrees with the commenters who state that the revision to the Regional Consistency regulations
As noted earlier, CAA § 301(a)(2) does not specifically discuss whether the fairness and uniformity objectives must be applied to all court decisions. Instead, the provision requires the EPA to establish
The EPA disagrees with commenters who claim that the amendments to the Regional Consistency regulations violate CAA § 301(a)(1). This provision provides authority to the Administrator to delegate her powers and duties to any EPA officer or employee as “[s]he may deem necessary or expedient.” This delegation is “expedient” if it is “suitable for achieving a particular end in a given circumstance” or “characterized by concern with what is opportune.”
As commenters admit, in
As commenters noted, the D.C. Circuit cited to CAA § 301(a)(2) in
As the EPA noted in the proposal notice,
Further, the EPA believes that the quote used by the petitioner in that case from page 1094 of the decision has been taken out of context. The court made a certain substantive ruling in
There is nothing in the limited legislative history of CAA § 301(a)(2) that counsels against the revision the EPA is making through this final action. The legislative history quoted by the commenter discusses one particular instance of regional inconsistency that, at least in part, motivated Congress to implement the regional consistency language of CAA § 301(a). This situation, which involved the use of different air quality models in different regions for the purpose of implementing the PSD permitting program, is far removed from the case of an adverse court decision of local or regional scope. Further, the legislative history surrounding passage of CAA § 307(b) indicates that Congress intended to advance the objective of even and consistent national application of certain EPA regulations that are national in scope. At the same time, Congress left the door open to intercircuit conflicts by granting jurisdiction over locally or regionally applicable “final actions” to the regionally-based courts of appeals. The EPA has found, and commenters have pointed to, nothing in the legislative history to suggest that at the same time, Congress intended for the Regional Consistency provisions to somehow upset this careful balance and require the EPA to apply a locally or regionally applicable decision in all EPA Regions in order to maintain consistency.
The revisions further the overall goal of consistency and clarity by specifically identifying the possibility of potential differing actions across the EPA Regions, especially where multiple courts have already addressed an issue in different ways, and standardizing a response that can be followed by all the EPA Regions, such that the EPA Regions
No commenter has explained in any detail why the NSR, NSPS or NESHAP programs are uniquely situated such that it would be inappropriate to finalize the narrow exception to the Regional Consistency regulations to deal with locally or regionally applicable federal court decisions. While some programs (such as NSR and NSPS) create national standards and others are administered through EPA-approved state implementation plans (SIPs), all portions of the CAA are federal law and apply nationwide. The explanation for the revisions provided in the proposal and final rule preambles apply equally to all criteria, procedures, and policies, and the commenter has failed to provide a reasoned explanation why certain programs should be considered differently. The EPA also notes that it is at times impossible to maintain complete consistency in the face of adverse court decisions. By revising the regulations, the EPA accommodates the possibility that a split in the circuits could preclude the EPA from complying with both court decisions at once, as illustrated by the following example outlined in the proposal notice. In a case involving a permit issued in New York, the Second Circuit upholds the EPA's longstanding position and, in doing so, confirms that the EPA's interpretation is compelled by the Act under Step One of
Specifically accommodating intercircuit nonacquiescence in the Regional Consistency regulations also fosters fairness and predictability in the implementation of the CAA overall. As discussed earlier, the revisions ensure that national policy continues to apply unless there is an affirmative nationwide and deliberate change in the EPA's rules or policies, or an adverse court decision applies only in those states/areas within the jurisdiction of that court, with the exception of the D.C. Circuit court reviewing final agency actions of national applicability. Under the revised Regional Consistency regulations, a source subject to the CAA needs to know and follow only the law in the circuit where it is located, and the law of the D.C. Circuit Court and the U.S. Supreme Court. It would not be required to follow every CAA case in every court across the country to ensure compliance with the Act. While a source remains free to advocate for a change in the agency's national policy based on the results of a regional circuit court decision, unless and until the agency agrees to make such a change, the national policy will continue to apply except in the circuit where the adverse decision was issued.
A few commenters stated that the EPA's proposal, if finalized, would harm businesses due to different regulatory requirements applying to different facilities based on their location. For example, industry argues it will face uneven application and enforcement of CAA requirements, and incur increased compliance costs as they try to address regulatory ambiguity and confusion. One commenter stated that the proposed revisions would not ensure “fairness” as required in CAA § 301(a)(2). One commenter argued that the proposed revisions will have a chilling effect on new projects or improvements. One commenter noted that limiting the regulatory amendments to local or regional court decisions does not help because many of these decisions actually have nationwide impact.
One commenter cautioned that finalization of the proposed amendments to the Regional Consistency regulations will lead to increased litigation over venue, since decisions by the D.C. Circuit will apply nationwide, while decisions of district courts and other circuit courts would not be required to apply nationwide. Multiple commenters further noted that the rule change may also lead to additional litigation in multiple circuits to expand the impact of a single regional or local court decision. The commenters believe this will lead to greater burdens on litigants and strains on judicial resources.
One commenter stated that a lack of national uniformity would create confusion and implementation issues given that the geographic boundaries of the EPA's Regional offices do not match the boundaries of the federal circuit courts and that a single EPA Region may have to apply two different standards based on court decisions and their jurisdictions.
The EPA believes in the overall importance of uniformity and fairness in the application of criteria, procedures, and policies across the various EPA regions in most instances. As the EPA explained when the Regional Consistency regulations were first finalized, the “intended effect” of these regulations was “to assure fair and consistent application of rules, regulations and policy throughout the country by assuring that the action of each individual EPA Regional office is consistent with one another and national policy” (45 FR 85400). These revisions merely identify a specific circumstance under which an EPA Regional office no longer needs to seek Headquarters concurrence to diverge from national policy, and confirms that national policy otherwise continues to apply.
CAA § 301(a)(2) focuses on promoting fairness and uniformity. The EPA believes that predictability is an important element of fairness and also a worthwhile objective to achieve in carrying out its mission. The changes made to the Regional Consistency regulations foster predictability by ensuring that, unless there is an affirmative nationwide and deliberate change in the EPA's rules or policies, lower court decisions would apply only in those areas within the jurisdiction of the lower court, with the exception of the D.C. Circuit Court reviewing final agency actions of national applicability, consistent with CAA § 307(b)(1). The EPA may choose to initiate a change in national policy at any time, including in light of an adverse court decision, but the agency is bound to follow appropriate procedures in order to do so.
If the revisions to the Regional Consistency regulations had already been in place at the time of the
The EPA acknowledges that under the revisions finalized, some facilities may be subject to different regulatory requirements based on their location. Some difference in governing rules is inherent in our federal judiciary system where district and circuit courts are limited to a definitive jurisdiction. The federal judicial system was designed to allow numerous, and sometimes conflicting, decisions until such time as the U.S. Supreme Court rules on an issue. The structure of the federal judicial system also sometimes results in increased litigation, as issues are considered by multiple courts. As noted previously, this rule simply changes the internal procedure followed by the agency in light of an adverse court decision; thus, these revisions, which are consistent with the federal judicial system, will not singlehandedly lead to increased litigation. One commenter noted that following this rulemaking, litigants may wish to challenge the venue of litigation more often to try to ensure cases are heard by the D.C. Circuit so that judicial outcomes apply nationwide. The EPA believes it is appropriate for venue to be challenged if the litigation is not brought in the appropriate court according to CAA § 307(b)(1). Under the CAA specifically, the drafting of CAA § 307(b) indicates that Congress intended to leave the door open to intercircuit conflicts by granting jurisdiction over locally or regionally applicable “final actions” to the regionally-based courts of appeals.
Further, sometimes court decisions reviewing a regulation or statute are reversed on appeal. In other cases, a court decision may contain a ruling that arguably calls into question a national rule in the context of a source-specific action, which is inconsistent with CAA § 307(b)(1), as explained in the proposal notice. When either outcome occurs, intercircuit nonacquiescence allows the EPA to limit the impact of the court's ruling while it undertakes other actions. For example, as outlined in the proposal notice, in
The EPA disagrees that the amendments made to the Regional Consistency regulations are poor public policy. It is generally acceptable to apply a circuit court or District Court decision only within the jurisdiction of the court. A standard that specifically allows for intercircuit nonacquiescence for all CAA decisions other than those issued by the D.C. Circuit Court in response to challenges of nationwide actions would provide a uniform standard for the EPA's application of court decisions that could be anticipated by those who implement the regulations and the regulated community.
The EPA acknowledges that the EPA Regional office boundaries do not align with the boundaries of circuit courts. However, the EPA Regional offices and Headquarters will endeavor to make clear the states, tribes, or local jurisdictions that are impacted by an adverse court decision. The EPA notes that, consistent with past practice, in certain instances the EPA Regions are already applying different policies across their states based on prior court decisions
In the proposed rule, we noted that the Regional Consistency regulations already allowed for some variation between the EPA Regional offices. Specifically, the original version of 40 CFR 56.5(b) provided that regional officials should “seek concurrence” from the EPA Headquarters with respect to any interpretations of the Act, rule, regulation, or guidance that “may result in inconsistent application among the Regional offices.” Thus, the Regional Consistency regulations have always contained a mechanism by which an EPA Regional office could diverge from national policy if doing so was required by an adverse court decision (
Nonetheless, as noted previously, the revisions do not hinder the EPA's ability to respond to an adverse court decision by revising a national policy or interpretation, following appropriate procedures, either on the agency's own initiative or in response to a request from a regulated entity or other interested party. The EPA recognizes that national policy can be influenced by insights and reasoning from judicial decisions and these revisions are not an indication that the agency will ignore persuasive judicial opinions issued in cases involving “locally or regionally applicable” actions. Such opinions may address issues of nationwide importance and could, in appropriate circumstances, lead the agency to adopt new national policy.
Some commenters stated that there would be no predictability under the EPA's proposal. One commenter expressed concern that the EPA Regional offices not covered by an adverse decision could choose to follow the adverse decision versus national policy. Another commenter also noted that the EPA's goal of promoting predictability is irrelevant because CAA § 301(a)(2) requires consistency, not predictability.
A couple of commenters stated that the EPA's proposed revision of the Regional Consistency regulations goes against 35 plus years of implementing the existing regulations. The commenters also argued that it is inconsistent with the position the EPA has taken in various rulemakings and historic practice, citing statements by a former EPA General Counsel.
Numerous commenters stated that the proposed amendments to the Regional Consistency regulations would allow the EPA too much discretion in deciding whether certain court decisions will apply on a national scale. They stated that there would be no guarantee that further judicial review would resolve conflicting decisions, citing to currently conflicting decisions on application of the statute of limitations to construction permitting as an example. Commenters expressed concern that this could lead to the EPA applying arbitrary and unspecified factors to determine when judicial decisions will be applied nationally. Several commenters suggested that the EPA should establish criteria it would use to determine when it will not change its national policy and when it will in the face of an adverse court decision. Commenters recommended that the EPA withdraw the rule, or, if it proceeds, provide clear criteria to identify when intercircuit nonacquiescence will be applied.
One commenter recommended that the Regional Consistency regulations only follow intercircuit nonacquiescence (1) Until three circuit courts have resolved the legal issue; (2) in circumstances of significant importance and impact on protection of human health and the environment; and (3) when documented in a written memorandum or directive signed by the Assistant Administrator for the Office of Air with concurrence of the General Counsel. Another commenter recommended that the EPA revise the Regional Consistency regulations to state that the agency will revisit a national policy whenever a court determines that it is arbitrary, capricious or otherwise unlawful. Further, the commenter offered that in such circumstances the EPA should consider whether to issue guidance clarifying what the EPA's policy will be going forward and undertake a rulemaking to effectuate that agency policy.
One commenter suggested that if the EPA does finalize the proposed amendments to the Regional Consistency regulations, the EPA should retain requirements “that (1) EPA Headquarters issue or revise mechanisms to address federal court decisions of local or regional applicability,
A couple of commenters argued that the EPA should allow notice and comment on agency determinations that it would depart from these final Regional Consistency regulations and apply certain judicial decisions more broadly on a case-by-case basis. One commenter recommended that “regional consistency determination[s]” be published in the
The EPA disagrees with the commenters' characterization of this action. The final revisions authorize an EPA region to diverge from national policy only to the extent that the EPA Region must do so in order to act consistently with a decision issued by a federal court that has direct jurisdiction over the EPA Region's action. The EPA regions outside of that court's jurisdiction would still be required to follow national policy or seek Headquarters concurrence to deviate from that policy. This is the same procedure established under the original Regional Consistency regulations.
The EPA further disagrees with commenters' statement that these final revisions go against the agency's past practice. Following the
Thus, the Regional Consistency regulations have never required absolute uniformity between the EPA Regional offices. Rather, the Regional Consistency regulations have always acknowledged that certain EPA Regions may in some instances act differently from others, and these final revisions simply identify and authorize differences in a specific limited circumstance—when necessitated by a federal court decision reviewing an action of local or regional applicability. Accordingly, the EPA does not view finalization of this rule as a significant shift in the practical outcomes. Rather, the EPA is changing the internal procedure followed by the agency in light of an adverse court decision.
A couple commenters claimed that the revisions to the Regional Consistency regulations are inconsistent
The EPA considered the suggestions of several commenters to add regulatory text defining the parameters under which the agency would be required to re-evaluate its national policy following adverse court decisions. In response, we note that the EPA carefully reviews each adverse court decision. The types of factors advocated by the commenters (
We also are not requiring that a Regional office obtain Headquarters concurrence regarding whether an adverse court decision requires that Regional office to deviate from otherwise applicable national policy. A key purpose of the revisions is to establish the presumption that national policy remains national policy, and thus the Regional offices are already required to follow national policy to the extent allowed by an adverse court decision applicable to the Regional office's actions. Of course a Regional office is always free to discuss the scope of a court decision with Headquarters, but revisions do not require a Regional office seek concurrence before acting consistent with an adverse court decision applicable to the action being undertaken by the Regional office.
Contrary to the concerns of some commenters, the final revisions will not allow the EPA to act arbitrarily in determining how to respond to an adverse court decision. Nothing in the final revisions alters the requirement that the EPA act in a reasonable, non-arbitrary manner at all times. Moreover, the final revisions already provide clear criteria regarding when the EPA will apply intercircuit nonacquiescence by establishing the presumption that national policy will not change in response to any given adverse decision.
The public is always free to petition the EPA to change regulations and national policy if it believes that the agency is inappropriately maintaining national policy in the face of numerous adverse court decisions. If a party believes that the EPA's position is no longer viable, it may petition the agency to change that position, and the party may then seek to challenge the EPA's final response to that petition if the party believes the EPA's final response is unreasonable, so long as the party meets all the usual statutory and jurisprudential requirements for such a challenge. For rules of national applicability, such challenges would be, appropriately, in the D.C. Circuit.
Thus, as noted earlier, the EPA is not adding regulatory text establishing specific parameters or criteria that would govern how the agency would act in light of adverse court decisions. Nor is the EPA establishing new procedures that would apply if and when the EPA does reconsider national policy. As always, if the EPA does revisit national policy, it will follow the applicable procedures. For example, if the agency is changing regulatory text, it will undertake the appropriate notice and comment process. If, however, the EPA is merely issuing an interpretive rule without changing the regulations themselves, then consistent with the Administrative Procedure Act and U.S. Supreme Court case law, the EPA is not bound to follow a notice and comment process. 5 U.S.C. 553(b)(3)(A);
The EPA received other miscellaneous comments that do not fall under the previous discussions, which are responded to in Sections 6.a and b.
Several commenters stated that the EPA should withdraw the proposal and leave the Regional Consistency regulations in place as currently written. A couple of commenters noted that the proposed amendments to the Regional Consistency regulations are not necessary because the EPA is under no obligation to undertake the rulemaking action. Commenters stated that while the EPA purported in the proposal notice to undertake the rulemaking in response to the
Several commenters stated that the court's suggestion in
One commenter noted that the EPA has other ways to respond to the court's decision in
The EPA has not taken the position that it is required by the D.C. Circuit's
Contrary to statements made by commenters, the EPA does not “continuously seek[ ] to expand the reach of its regulations through [ ] guidance.” Rather, the EPA issues guidance in an effort to better inform the regulated community and the public regarding the requirements of CAA regulations.
For the reasons set forth here and in the proposed rule, these revisions to the Regional Consistency regulations are an effective way to address the implications of adverse court decisions rendered by courts reviewing actions of local or regional applicability. While the EPA does have other options available to it, the EPA has determined that these revisions to the Regional Consistency regulations most effectively address the issue presented by an adverse court decision involving an action or local or regional applicability.
One commenter contended that the EPA failed to acknowledge the difference between an EPA action involving interpretation of a national regulation applied to a particular facility and an EPA action addressing a SIP provision. In the context of SIP provisions, the commenter stated that, “to the extent not prohibited by the CAA, the EPA should (and must) allow inconsistencies in particular SIP provisions as between states.”
Another commenter supported the EPA's proposed addition to CAA § 56.5(b) insofar as it will ensure that the EPA Regional offices not subject to a court decision will continue to act consistently with existing national policy. However, the commenter believes that the proposed revision to CAA § 56.5(b) does not clearly accomplish this. The commenter contended that the existing and proposed regulatory text should be harmonized to make clear that, after an adverse court decision issued by a court reviewing a locally or regionally applicable action, continued application of national policy by the EPA Regional offices that are not subject to that court's jurisdiction does not require concurrence from EPA Headquarters, notwithstanding any inconsistency with the actions taken by the EPA Region(s) bound by the court's decision.
The EPA agrees with the commenter that states are accorded great discretion under CAA § 110 in determining how to meet CAA requirements in SIPs. However, states are obligated to develop SIP provisions that meet fundamental CAA requirements. The EPA has the responsibility to review SIP provisions developed by states to ensure that they in fact meet fundamental CAA requirements. The Regional Consistency regulations generally establish certain mechanisms with the goal of “identifying, preventing, and resolving regional inconsistencies” (45 FR 85400). For the EPA Headquarters office employees, the regulations do this by targeting particular aspects of the Act that have the potential to present consistency problems—including any rule or regulation proposed or promulgated which sets forth requirements for the preparation, adoption, and submittal of state implementation plans.
We concur with the comment that the EPA Regional offices not covered by an adverse court decision should continue to follow existing national policy. We looked at the proposed revisions to 40 CFR 56.5(b), as well as the revised language provided by the commenters. We agree that the revision to 40 CFR 56.5(b) suggested by the commenter more clearly expresses that the exception to seeking Headquarters concurrence applies only to the EPA regions that must diverge from agency policy due to an adverse court decision with jurisdiction over the EPA region's actions. We have thus changed the regulatory text accordingly.
This action finalizes a rule revision that provides procedural direction to the EPA Regions and Headquarters offices in implementing court decisions of a limited scope (
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 any new information collection burden. The final rule will not create any new requirements for regulated entities, but rather provides procedural direction to the EPA Regions and Headquarters offices in implementing national programs potentially affected by adverse court decisions of a limited scope (
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may
This action does not contain any unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.
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 final rule revises regulations that apply to the EPA, and any delegated state/local governments, only, and would not, therefore, affect the relationship between the national government and the states or 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. It will not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. This final rule only provides procedural direction to EPA Regions and Headquarters offices in implementing court decisions of a limited scope (
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 directly involve an environmental health risk or safety risk.
This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
This action does not involve technical standards.
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
The documentation for this decision is contained in Section IV of this document titled, “Environmental Justice Considerations.”
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 CAA § 307(b)(1), petitions for judicial review of any nationally applicable regulation, or any action the Administrator “finds and publishes” as based on a determination of nationwide scope or effect must be filed in the United States Court of Appeals for the District of Columbia Circuit within 60 days of the date the promulgation, approval, or action appears in the
The statutory authority for this action is provided by section 301 of the CAA as amended (42 U.S.C. 7601).
Environmental protection, Air pollution control.
For the reasons stated in the preamble, title 40, chapter I, part 56 of the Code of Federal Regulations is amended as follows:
Sec. 301(a)(2) of the Clean Air Act as amended (42 U.S.C. 7401).
(d) Recognize that only the decisions of the U.S. Supreme Court and decisions of the U.S. Court of Appeals for the D.C. Circuit Court that arise from challenges to “nationally applicable regulations . . . or final action,” as discussed in Clean Air Act section 307(b) (42 U.S.C. 7607(b)), shall apply uniformly, and to provide for exceptions to the general policy stated in paragraphs (a) and (b) of this section with regard to decisions of the federal courts that arise from challenges to “locally or regionally applicable” actions, as provided in Clean Air Act section 307(b) (42 U.S.C. 7607(b)).
(c) The Administrator shall not be required to issue new mechanisms or revise existing mechanisms developed
(b) A responsible official in a Regional office shall seek concurrence from the appropriate EPA Headquarters office on any interpretation of the Act, or rule, regulation, or program directive when such interpretation may result in application of the act or rule, regulation, or program directive that is inconsistent with Agency policy. However, the responsible official in a Regional office will not be required to seek such concurrence from the appropriate EPA Headquarters office for actions that may result in inconsistent application if such inconsistent application is required in order to act in accordance with a federal court decision:
(1) Issued by a Circuit Court in challenges to “locally or regionally applicable” actions, as provided in Clean Air Act section 307(b) (42 U.S.C. 7607(b)), if that circuit court has direct jurisdiction over the geographic areas that the Regional office official is addressing, or (2) Issued by a district court in a specific case if the party the Regional office official is addressing was also a party in the case that resulted in the decision.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to amend the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for Aerospace Manufacturing and Rework Facilities. In this action, we are clarifying the compliance date for the handling and storage of waste.
This rule is effective on October 3, 2016 without further notice, unless the EPA receives significant and relevant adverse comment by September 2, 2016. If the EPA receives significant and relevant adverse comment, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2014-0830, at
For questions about this direct final action, contact Ms. Kim Teal, Sector Policies and Programs Division (D243-04), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-5580; fax number: (919) 541-5450; and email address:
The EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no significant and relevant adverse comment.
In the final rule published December 7, 2015, we inadvertently failed to identify the compliance date for sources subject to the requirements for handling and storage of waste. Therefore, in this document we are correcting that oversight. In the “Proposed Rules” section of this
If the EPA receives significant and relevant adverse comment, we will publish a timely withdrawal in the
Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source categories listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding
This direct final rule provides a compliance date of December 7, 2018, for sources subject to the requirements for handling and storage of waste in 40 CFR part 63, subpart GG. In the final rule dated December 7, 2015, we regulated specialty coating application operations for the first time. The compliance date for these new requirements was December 7, 2018. We also revised and clarified requirements for handling and storage of waste, and our intent was to specify the same December 7, 2018, compliance date for these revised requirements (80 FR 76172-74). However, we neglected to specify a compliance date for these revised waste handling and storage requirements in the regulatory text. Reading the regulatory text as now written would imply that the compliance date for these revised waste handling and storage requirements would be September 1, 1998. Therefore, we are correcting the rule text at 40 CFR 63.749(a)(3) to make it clear that the December 7, 2018, compliance date also applies to sources subject to the waste storage and handling requirements.
The EPA is accepting comments only on the specific issue raised in this direct final action and the accompanying proposed rule, the compliance date for handling and storage of waste. The EPA is not reopening or accepting comment on any other aspect of the NESHAP for Aerospace Manufacturing and Rework Facilities.
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 any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB Control Number 2060-0314. This action does not impose any new information collection burden because it serves only to provide a compliance date for the handling and storage of waste requirements.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden, or otherwise has a positive economic effect on the small entities subject to the rule. This action will not impose any costs on small entities. No facilities meeting the Small Business Administration's definition of a small business will incur costs. We have, therefore, concluded that this action will have no net regulatory burden for all directly regulated small entities.
This action does not contain any unfunded mandate as described in the UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.
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. No tribal facilities are known to be engaged in the aerospace manufacturing or rework surface coating operations that would be affected by this action. 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 concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in
Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action serves only to provide a compliance date for the previously promulgated handling and storage of waste requirements.
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).
Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, part 63 of title 40, chapter I, of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(a) * * *
(3) Each owner or operator of a specialty coating application operation or handling and storage of waste operation that begins construction or reconstruction after February 17, 2015, shall be in compliance with the requirements of this subpart on December 7, 2015, or upon startup, whichever is later. Each owner or operator of a specialty coating application operation or handling and storage of waste operation that is existing on February 17, 2015, shall be in compliance with the requirements of this subpart on or before December 7, 2018.
Centers for Medicare & Medicaid Services (CMS), HHS.
Implementation of the waiver demonstration.
This notice announces the Provider Enrollment Moratoria Access Waiver Demonstration of Part B Non-Emergency Ground Ambulance Suppliers and Home Health Agencies in 6 states. The demonstration is being implemented in accordance with section 402 of the Social Security Amendments of 1967 and gives CMS the authority to grant waivers to the statewide enrollment moratoria on a case-by-case basis in response to access to care issues, and to subject providers and suppliers enrolling via such waivers to heightened screening, oversight, and investigations.
Effective July 29, 2016.
Jung Kim, (410) 786-9370. News media representatives must contact CMS' Public Affairs Office at (202) 690-6145 or email them at
The Affordable Care Act provided CMS with new tools and resources to combat fraud, waste, and abuse in Medicare, Medicaid, and the Children's Health Insurance Program (CHIP), including the authority to implement a temporary moratorium on provider enrollment in these programs. CMS uses quantitative and qualitative data to determine whether there is a need for a moratorium, such as reviewing provider and supplier saturation data for the area
Since implementation of the moratoria, CMS has been able to evaluate the moratoria and has identified several limitations. Because the current moratoria are geographically defined by county, they do not prohibit providers and suppliers from opening new locations or creating a new enrollment outside the moratorium area and moving it into a moratorium area. Moreover, CMS is unable to prevent existing providers and suppliers from outside of a moratoria area from servicing beneficiaries within that area. In fact, CMS has analyzed data showing that some providers and suppliers who are located several hundred miles outside of a moratorium area are billing for services provided to beneficiaries located within that moratorium area. The ability of providers and suppliers to circumvent the moratoria undermines the effectiveness of the moratoria in protecting the integrity of the Medicare, Medicaid, and CHIP programs.
In order to mitigate the vulnerabilities that have been observed in the current moratoria, CMS is expanding the moratoria on Medicare Part B, Medicaid, and CHIP non-emergency ambulance suppliers and Medicare, Medicaid, and CHIP HHA providers to statewide as announced elsewhere in this issue of the
CMS is implementing the “Provider Enrollment Moratoria Access Waiver Demonstration” (PEWD), as authorized by section 402(a)(1)(J) of the Social Security Amendments of 1967 (42 U.S.C. 1395b-1(a)(1)(J)), concurrently with the announcement of the statewide expansion of temporary moratoria on the enrollment of non-emergency ambulance suppliers and home health agencies in Medicare, Medicaid, and CHIP in six states elsewhere in this issue of the
In order to qualify for a waiver of the moratoria restrictions, a provider or supplier must demonstrate that an access to care issue exists, and will be subject to heightened screening measures. If the provider or supplier receives a waiver, restrictions will be implemented on the provider's or supplier's service area to limit the provider or supplier to the area with access to care issues and prevent it from furnishing services in locations that are already oversaturated with that provider or supplier type. This restriction will be based on the saturation of providers or suppliers and the number of beneficiaries in the counties where the provider or supplier proposes to operate. Extensive evaluations of providers and suppliers seeking to enroll through this demonstration will be coupled with proactive reviews of submitted claims beginning within the first 60 days of enrollment, as well as increased investigations with referral to law enforcement as appropriate, for newly enrolled and existing providers.
Under the demonstration, claims submitted for services furnished outside of the provider's or supplier's approved service area will be denied and the provider or supplier may not bill beneficiaries for such services provided. This will limit the financial liability of Medicare, Medicaid, and CHIP beneficiaries and protect them from costs associated with claims submitted by providers and suppliers who are not eligible to provide services in that geographic location.
For the same reasons that we implementing this demonstration in Medicare, CMS will also implement the demonstration in Medicaid and CHIP, as authorized by section 402 of the Social Security Amendments of 1967.
The CMS Center for Program Integrity (CPI) will perform all PEWD application reviews and make the relevant access to care determinations.
CMS is currently engaged in the process to seek OMB approval of a PEWD application form under the Paperwork Reduction Act of 1995. Upon approval of this form, providers and suppliers should complete the form and submit it, with all required documentation, to the designated mailbox:
Once a complete application is received, the primary determining factor for PEW approval under this demonstration, and the first step in application review, will be a determination regarding beneficiary access to care. This determination will be primarily based upon an evaluation of provider and supplier saturation, provider or supplier to beneficiary ratios, and claims data; this review will be supplemented with the access to care information that the provider or supplier has provided. As a requirement of the application, the provider or supplier will be required to submit detailed access to care information that demonstrates whether an access to care issue exists in the counties where the provider or supplier is attempting to enroll. In 2016, we publicly released moratoria-related saturation data. This data set, located at
If we determine that a beneficiary access to care issue does not exist in the counties where the provider or supplier proposes to operate, the application will be rejected and the application fee will be refunded. A provider or supplier whose application has been rejected may submit a new application at any time. If any subsequent application demonstrates an access to care issue, then we may move forward with processing the application.
When we determine that beneficiary access to care is limited in the counties where the provider or supplier has proposed to enroll, we will continue to the next step in processing the application. We will utilize the ownership information in the submitted CMS-855, in conjunction with the information on the PEWD application, to perform the following screening measures:
• License verification.
• Background investigations including evaluation of affiliations as outlined in the March 1, 2016 proposed rule.
• Federal debt review.
• Credit history review.
• Fingerprint-based criminal background checks (FCBC) of persons with a 5 percent or greater direct or indirect ownership interest, partners and managing employees.
• Enhanced site visits.
• Ownership interest verification in LexisNexis and state databases.
• Evaluation of past behavior in other public programs.
If CMS determines that a provider or supplier meets the requirements of the PEWD, it will forward the provider or supplier's CMS 855 application to the Medicare Administrative Contractor (MAC) for further processing. The MAC will process the application and determine whether enrollment is appropriate based on all current enrollment policies and procedures.
In addition to the heightened screening measures previously described, providers or suppliers that enroll via this demonstration will also be subject to a 1-year period of enhanced oversight as authorized by section 1866(j)(3)(A) of the Social Security Act (the Act). As part of this oversight, providers or suppliers that enroll through the demonstration will be limited to furnishing services within a specific geographic area based on beneficiary access to care determinations. Providers and suppliers submitting a PEWD application will specify a requested geographic area. However, this area may be further restricted or expanded based upon CMS's determination regarding the scope of the access to care issue. Claims for services furnished outside of the approved service area will be denied and the provider or supplier may not bill beneficiaries for services outside of the approved service area.
Another aspect of our enhanced oversight during this demonstration will be to closely monitor the billing patterns of providers and suppliers through the Fraud Prevention System (FPS). Any abuse of billing privileges may result in revocation of Medicare enrollment. All applicants who are enrolled through the PEWD will be subject to all Medicare policies and regulations, including the requirement of revalidation of their Medicare enrollment within five years of initial enrollment, in addition to the heightened oversight that is implemented through the demonstration.
If CMS determines there is a beneficiary access to care issue, we will utilize tools that CMS already has in place to facilitate care. Both the regional offices and 1-800-MEDICARE have experience and valuable tools in resolving beneficiary access to care issues, including Home Health Compare and similar provider and supplier locator resources. As current practice dictates, the beneficiary will also be assisted with widening his search, if appropriate, and can be given additional means to assist in finding care, including utilizing the Senior Health Insurance Program (SHIP), an organization that is very experienced in addressing such issues. In the event that the beneficiary is a Medicare Advantage enrollee, then their plan would be contacted and responsible for providing a resolution to their access to care issue.
Throughout the course of the demonstration, CMS will work with all of its state, federal and law enforcement partners to identify fraudulent providers and suppliers and will take administrative action to remove such providers and suppliers from the Medicare program. For example, within 60 days of a provider or supplier's enrollment pursuant to the PEW, we will perform proactive monitoring and oversight of such provider or supplier, including proactive examination of claims data and investigation of billing anomalies. Further, we will prioritize PEWD-related investigations and will make referrals to appropriate law enforcement partners, including Department of Justice (DOJ), Office of Inspector General (OIG), and state law enforcement agencies, for prosecution of fraud.
In addition to the Medicare program, this demonstration will also apply to Medicaid and CHIP. The states will administer the Medicaid and CHIP PEWD and will independently evaluate access to care. If a state determines that a statewide expansion of temporary moratoria would pose unique access to care concerns as compared with more geographically limited moratoria, then the state may elect to lift the moratoria after notifying the Secretary. However, we anticipate that, in the majority of cases, states will be able to use the flexibilities afforded by PEWD to address access to care concerns.
All PEWD-related processes, including but not limited to heightened screening, enrollment, denials, and appeals will be operationalized by the state Medicaid and CHIP agencies in accordance with Federal and State regulations and guidance. The states will make recommendations to CMS regarding when a provider should be enrolled based on access to care, and must wait for CMS concurrence prior to enrolling a provider under the PEWD. CMS will evaluate all recommendations within 30 days of receipt and will advise the state as to whether or not CMS concurs with the recommendation to move forward in the enrollment process. States will not be required to seek approval from CMS to deny a PEWD application. If a provider or supplier receives an enrollment waiver from Medicare, the provider or supplier will be eligible to enroll in Medicaid or CHIP without further review by the states or further concurrence by CMS. However, if a provider or supplier receives a Medicaid or CHIP waiver, the provider or supplier must separately apply for a waiver with Medicare.
CMS will utilize the PEWD as an opportunity to observe the statewide moratoria and heightened application review effectiveness until the moratoria are lifted, or for a total of 3 years, whichever comes first. Should the PEWD prove to be a useful tool, we will explore options for continuing and expanding the most successful aspects outside of the context of a demonstration. The enhanced oversight exercised as part of the demonstration will also allow us to identify trends and vulnerabilities in the moratoria states and make program adjustments to address fraud schemes as they transform over time.
At the conclusion of the demonstration, those enrollments that occurred as part of the PEWD will be converted to standard enrollments without geographical billing restrictions.
The PEWD will begin concurrently with statewide expansion of moratoria of HHAs and ambulance suppliers in 6 states (which will be in place for 6 months with the potential for extensions in 6-month increments) and will commence on July 29, 2016. This demonstration will last until the statewide moratoria are lifted, or for a total of 3 years through (concluding on July 28, 2019), whichever comes first.
In accordance with the implementing regulations of the Paperwork Reduction Act of 1995 (PRA) we requested emergency review under 5 CFR 1320.13(a)(2)(i) because public harm is reasonably likely to result if the regular clearance procedures were followed. Interested parties may comment on the collection of information requirements during a 2-week comment period beginning on July 29, 2016. Those comments will be reviewed prior to OMB action. Once approved, any information collection will be active for no more than 6 months.
Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day and 30-day notice in the
To fairly evaluate whether an information collection should be approved by OMB, section 3506(c)(2)(A) of the PRA 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 estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
We are soliciting public comment on the ICRs outlined as follows.
The provider and supplier burden associated with completion of this form is estimated at six hours per form. This will include the following time burden per form:
There will be variation to this estimate based on proximity to a fingerprinting offices as well as the complexity of the data that the provider or suppliers elects to submit. To assist with completion of access to care assessment, CMS has HHA and ambulance saturation data available at
CMS expects an estimate of 800 new applicants
This form will be completed by provider and suppliers seeking a waiver to enroll in a Moratoria area. The cost burden is estimated at $26.00 ($13.00 base pay) an hour for completion of access to care analysis and miscellaneous administrative activities, totaling $65.00 per application, equaling $52,000 annually. The cost burden is estimated at $178.70 ($89.35 base pay) an hour for the owner to obtain fingerprints and waiver form totaling $625.45 per application, equaling $500,360 annually. Estimated annual burden for 800 newly enrolling applicants totals $552,360.To derive average costs, we used date from the Bureau of Labor Statistics' May 2015 National Occupational Employment and Wage Estimates (
We welcome comments on all burden estimates contained in the collection of information section of this notice. If you comment on these information collection and recordkeeping requirements, please do either of the following:
1. Submit your comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: CMS Desk Officer, (CMS-10629), Fax: (202) 395-6974; or Email:
Under section 402(b) of Pub. L. 90-248 (42 U.S.C. 1395b-1(b)), certain
• Waiver of § 424.518(c) and (d) and 455.434(a) which describe the fingerprinting rules for enrollment in Medicare, Medicaid and CHIP.
• Waiver of section 1866(j)(3)(B) of the Act, which requires program instruction or regulatory interpretation in order to implement section 1866(j)(3) of the Act for the provisional period of enhanced oversight for new providers of services and suppliers. We intend to implement the requirements of section 1866(j)(3) of the Act for purposes of this demonstration and in the absence of regulation or other instruction in order to allow for a 1-year period of enhanced oversight of newly enrolling providers and suppliers under this demonstration.
• Waiver of § 424.545, Part 498 Subparts D and E, and § 405.803(b) of the regulations, as well as section 1866(j)(8) of the Act which allow a provider or supplier the right to request a hearing with an administrative law judge and the Department Appeals Board in the case of denial of an enrollment application. Denials of enrollment pursuant to this demonstration will be appealable only to CMS, and any applicant to the PEWD will waive their right to further appeal.
• Waiver of section 1866(j)(7) of the Act and §§ 424.570 and 455.470 of the regulations which specify that the moratoria must be implemented at a provider- or supplier-type level, in order to allow a case-by-case exception process to moratoria.
Centers for Medicare & Medicaid Services (CMS), HHS.
Extension, implementation, and lifting of temporary moratoria.
This document announces the extension of temporary moratoria on the enrollment of new Medicare Part B non-emergency ground ambulance suppliers and Medicare home health agencies (HHAs), subunits, and branch locations in specific locations within designated metropolitan areas in Florida, Illinois, Michigan, Texas, Pennsylvania, and New Jersey to prevent and combat fraud, waste, and abuse. It also announces the implementation of temporary moratoria on the enrollment of new Medicare Part B non-emergency ground ambulance suppliers and Medicare HHAs, subunits, and branch locations in Florida, Illinois, Michigan, Texas, Pennsylvania, and New Jersey on a statewide basis. In addition, it announces the lifting of the moratoria on all Part B emergency ground ambulance suppliers. These moratoria, and the changes described in this document, also apply to the enrollment of HHAs and non-emergency ground ambulance suppliers in Medicaid and the Children's Health Insurance Program.
Effective July 29, 2016.
Jung Kim, (410) 786-9370.
News media representatives must contact CMS' Public Affairs Office at (202) 690-6145 or email them at
Under 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 known as the Affordable Care Act), the Congress provided the Secretary with new tools and resources to combat fraud, waste, and abuse in Medicare, Medicaid, and the Children's Health Insurance Program (CHIP). Section 6401(a) of the Affordable Care Act added a new section 1866(j)(7) to the Social Security Act (the Act) to provide the Secretary with authority to impose a temporary moratorium on the enrollment of new Medicare, Medicaid or CHIP providers and suppliers, including categories of providers and suppliers, if the Secretary determines a moratorium is necessary to prevent or combat fraud, waste, or abuse under these programs. Section 6401(b) of the Affordable Care Act added specific moratorium language applicable to Medicaid at section 1902(kk)(4) of the Act, requiring States to comply with any moratorium imposed by the Secretary unless the State determines that the imposition of such moratorium would adversely impact Medicaid beneficiaries' access to care. Section 6401(c) of the Affordable Care Act amended section 2107(e)(1) of the Act to provide that all of the Medicaid provisions in sections 1902(a)(77) and 1902(kk) are also applicable to CHIP.
In the February 2, 2011
In accordance with section 1866(j)(7)(B) of the Act, there is no judicial review under sections 1869 and 1878 of the Act, or otherwise, of the decision to impose a temporary enrollment moratorium. A provider or supplier may use the existing appeal procedures at 42 CFR part 498 to administratively appeal a denial of billing privileges based on the imposition of a temporary moratorium; however the scope of any such appeal is limited solely to assessing whether the temporary moratorium applies to the provider or supplier appealing the denial. Under § 424.570(c), CMS denies the enrollment application of a provider or supplier if the provider or supplier is subject to a moratorium. If the provider or supplier was required to pay an application fee, the application fee will be refunded if the application was denied as a result of the imposition of a temporary moratorium (see § 424.514(d)(2)(v)(C)).
Based on this authority and our regulations at § 424.570, we initially imposed moratoria to prevent enrollment of new HHAs, subunits, and branch locations
In imposing these enrollment moratoria, CMS considered both qualitative and quantitative factors suggesting a high risk of fraud, waste, or abuse. CMS relied on law enforcement's longstanding experience with ongoing and emerging fraud trends and activities through civil, criminal, and administrative investigations and prosecutions. CMS' determination of a high risk of fraud, waste, or abuse in these provider and supplier types within these geographic locations was then confirmed by CMS' data analysis, which relied on factors the agency identified as strong indicators of risk. (For a more detailed explanation of this determination process and of these authorities, see the July 31, 2013 notice (78 FR 46339) or February 4, 2014 moratoria document (79 FR 6475)).
Because fraud schemes are highly migratory and transitory in nature, many of CMS' program integrity authorities and anti-fraud activities are designed to allow the agency to adapt to emerging fraud in different locations. The laws and regulations governing CMS' moratoria authority give us flexibility to use any and all relevant criteria for future moratoria, and CMS may rely on additional or different criteria as the basis for future moratoria.
The February 2, 2011 final rule also implemented section 1902(kk)(4) of the Act, establishing new Medicaid regulations at § 455.470. Under § 455.470(a)(1) through (3), the Secretary may impose a temporary moratorium, in accordance with § 424.570, on the enrollment of new providers or provider types after consulting with any affected State Medicaid agencies. The State Medicaid agency must impose a temporary moratorium on the enrollment of new providers or provider types identified by the Secretary as posing an increased risk to the Medicaid program unless the State determines that the imposition of such moratorium would adversely affect Medicaid beneficiaries' access to medical assistance and so notifies the Secretary. The final rule also implemented section 2107(e)(1)(D) of the Act by providing, at § 457.990 of the regulations, that all of the provisions that apply to Medicaid under sections 1902(a)(77) and 1902(kk) of the Act, as well as the implementing regulations, also apply to CHIP.
Section 1866(j)(7) of the Act authorizes imposition of a temporary enrollment moratorium for Medicare, Medicaid, and/or CHIP, “if the Secretary determines such moratorium is necessary to prevent or combat fraud, waste, or abuse under either such program.” While there may be exceptions, CMS believes that generally, a category of providers or suppliers that poses a risk to the Medicare program also poses a similar risk to Medicaid and CHIP. Many of the new anti-fraud provisions in the Affordable Care Act reflect this concept of “reciprocal risk” in which a provider that poses a risk to one program poses a risk to the other programs. For example, section 6501 of the Affordable Care Act titled, “Termination of Provider Participation under Medicaid if Terminated Under Medicare or Other State Plan,” which amends section 1902(a)(39) of the Act, requires State Medicaid agencies to terminate the participation of an individual or entity if such individual or entity is terminated under Medicare or any other State Medicaid plan. Additional provisions in title VI, Subtitles E and F of the Affordable Care Act also support the determination that categories of providers and suppliers pose the same risk to Medicaid as to Medicare. Section 6401(a) of the Affordable Care Act required us to establish levels of screening for categories of providers and suppliers based on the risk of fraud, waste, and abuse determined by the Secretary. Section 6401(b) of the Affordable Care Act required State Medicaid agencies to screen providers and suppliers based on the same levels established for the Medicare program. This reciprocal concept is also reflected in the Medicare moratoria regulations at § 424.570(a)(2)(ii) and (iii), which permit CMS to impose a Medicare moratorium based solely on a State imposing a Medicaid moratorium. Accordingly, CMS has determined that there is a reasonable basis for concluding that a category of providers or suppliers that poses a risk to Medicare also poses a similar risk to Medicaid and CHIP, and that a moratorium in all of these programs is necessary to effectively combat this risk.
In consultation with the HHS Office of Inspector General (OIG) and the Department of Justice (DOJ), CMS previously identified two provider and supplier types in nine geographic locations that warrant a temporary enrollment moratorium. For a more detailed discussion of this consultation process, see the July 31, 2013 notice (78 FR 46339) or February 4, 2014 moratoria document (79 FR 6475).
In addition to consulting with law enforcement, CMS also analyzed its own data to identify specific provider and
Four of the six states subject to the temporary enrollment moratoria for HHAs and Part B non-emergency ground ambulance suppliers have counties that contain or are adjacent to HEAT Medicare Fraud Strike Force locations, with the exception of Pennsylvania and New Jersey. All six states are also consistently ranked near the top for the identified metrics among counties with at least 200,000 Medicare beneficiaries in 2012.
Beneficiary access to care in Medicare, Medicaid, and CHIP is of critical importance to CMS and its State partners, and CMS carefully evaluated access for the target moratorium locations with every imposition and extension of the moratoria. Prior to imposing these moratoria, CMS reviewed Medicare data for these areas and found no concerns with beneficiary access to HHAs or ground ambulance suppliers. CMS also consulted with the appropriate State Medicaid Agencies and with the appropriate State Departments of Emergency Medical Services to determine if the moratoria would create access to care concerns for Medicaid and CHIP beneficiaries in the targeted locations and surrounding counties. All of CMS' State partners were supportive of CMS' analysis and proposals, and together with CMS, determined that these moratoria would not create access to care issues for Medicaid or CHIP beneficiaries.
Under § 424.570(a)(1)(iii), a temporary moratorium does not apply to changes in practice locations, changes to provider or supplier information such as phone number, address, or changes in ownership (except changes in ownership of HHAs that require initial enrollments under § 424.550). Also, in accordance with § 424.570(a)(1)(iv), the moratorium does not apply to an enrollment application that a CMS contractor has already approved, but has not yet entered into the Provider Enrollment Chain and Ownership System (PECOS) at the time the moratorium is imposed.
In accordance with § 424.570(b), a temporary enrollment moratorium imposed by CMS will remain in effect for 6 months. If CMS deems it necessary, the moratorium may be extended in 6-month increments. CMS will evaluate whether to extend or lift the moratorium before the end of the initial 6-month period and, if applicable, any subsequent moratorium periods. If one or more of the moratoria announced in this document are extended, CMS will publish a document regarding such extensions in the
As provided in § 424.570(d), CMS may lift a moratorium at any time if the President declares an area a disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, if circumstances warranting the imposition of a moratorium have abated, if the Secretary has declared a public health emergency, or if, in the judgment of the Secretary, the moratorium is no longer needed.
Once a moratorium is lifted, the provider or supplier types that were unable to enroll because of the moratorium will be designated to CMS' high screening level under §§ 424.518(c)(3)(iii) and 455.450(e)(2) for 6 months from the date the moratorium was lifted.
CMS previously imposed moratoria on the enrollment of new Part B ground ambulance suppliers in the Texas counties of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller; the Pennsylvania counties of Bucks, Delaware, Montgomery, and Philadelphia; and the New Jersey counties of Burlington, Camden, and Gloucester. These moratoria became effective upon publication of the notice in the
Throughout the duration of the temporary moratoria on newly enrolling Part B ground ambulance providers, CMS has evaluated the risk to the Medicare program of separate categories of ambulance suppliers. This evaluation has shown that the primary risk to the program comes from the non-emergency ambulance supplier category. Additionally, we have observed potential access to care related issues for emergency ambulance services in some areas. As a result, CMS is not extending the temporary moratoria on the enrollment of Part B emergency ground ambulance suppliers in any geographic locations in the states of New Jersey, Pennsylvania, or Texas. However, we will continue to evaluate all ambulance services for indicators of fraud, waste, and abuse and will evaluate the need for future moratoria based on these indicators. The lifting of the moratorium on new Part B emergency ambulance suppliers in all geographic locations also applies to Medicaid and CHIP. New Part B suppliers of emergency ambulance services will be permitted to enroll as of July 29, 2016. Any such suppliers that enroll within 6 months of that date will be included in the “high” risk screening category, as provided in § 424.518(c)(3). New emergency ambulance suppliers that furnish both emergency and non-emergency services will only be able to bill for emergency transportation services.
CMS previously imposed moratoria on the enrollment of new HHAs in the Florida counties of Broward, Miami-Dade, and Monroe; the Illinois counties of Cook, DuPage, Kane, Lake, McHenry, and Will; the Michigan counties of Macomb, Monroe, Oakland, Washtenaw, and Wayne; and the Texas counties of Brazoria, Chambers, Collin, Fort Bend, Galveston, Dallas, Harris, Liberty, Denton, Ellis, Kaufman, Montgomery, Rockwall, Tarrant, and Waller. Further, we previously imposed moratoria on the enrollment of new ground ambulance suppliers in the Texas counties of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller; the Pennsylvania counties of Bucks, Delaware, Montgomery, and Philadelphia; and the New Jersey counties of Burlington, Camden, and Gloucester. These moratoria became effective upon publication of the notice in the
As provided in § 424.570(b), CMS may deem it necessary to extend previously-imposed moratoria in 6-month increments. Under this authority, CMS is extending the temporary moratoria on the Medicare enrollment of HHAs and Part B non-emergency ground ambulance suppliers in the geographic locations discussed herein. Under regulations at § 455.470 and
CMS consulted with the HHS-OIG regarding the extension of the moratoria on new HHAs and Part B non-emergency ground ambulance suppliers in all of the moratoria counties, and HHS-OIG agrees that a significant potential for fraud, waste, and abuse continues to exist regarding those provider and supplier types in these geographic areas. The circumstances warranting the imposition of the moratoria have not yet abated, and CMS has determined that the moratoria are still needed as we monitor the indicators and continue with administrative actions to combat fraud and abuse, such as payment suspensions and revocations of provider/supplier numbers. (For more information regarding the monitored indicators, see the February 4, 2014 moratoria document (79 FR 6475)).
Based upon CMS' consultation with the relevant State Medicaid agencies, CMS has concluded that extending these moratoria will not create an access to care issue for Medicaid or CHIP beneficiaries in the affected counties at this time. CMS also reviewed Medicare data for these areas and found there are no current problems with access to HHAs or ground ambulance suppliers. Nevertheless, the agency will continue to monitor these locations to make sure that no access to care issues arise in the future.
Based upon our consultation with law enforcement and consideration of the factors and activities described previously, CMS has determined that the temporary enrollment moratoria should be extended for an additional 6 months.
CMS has determined that the factors initially evaluated to implement the temporary moratoria show that a high risk of fraud, waste, and abuse exists beyond the current moratoria areas, which may suggest that a high risk of fraud, waste, or abuse exists due largely to circumvention of the moratoria by some providers and suppliers. The primary means of circumvention includes enrolling a new practice location outside of a moratorium area and servicing beneficiaries within the moratorium area. Additionally, CMS has continued to see areas of saturation that exceed the national average in the moratoria states. As a result, CMS, in consultation with the OIG, has determined that it is necessary to expand the temporary moratoria on a statewide basis, by implementing temporary moratoria on all newly enrolling HHAs in the remaining counties in Florida, Illinois, Michigan, and Texas, and on all newly enrolling Part B non-emergency ground ambulance suppliers in the remaining counties in Texas, New Jersey, and Pennsylvania, in order to combat fraud, waste, or abuse in those states. CMS has determined that these moratoria will also apply to Medicaid and CHIP in each state, although states continue to have the ability to opt out if they determine that the imposition of such moratorium would adversely impact Medicaid beneficiaries' access to care.
In the document published on February 4, 2014 (79 FR 6475) initially imposing the temporary moratorium on enrollment of HHAs in Broward County, Florida, CMS stated that “it is not necessary to extend the moratorium to the other counties that border Broward because of the state's home health licensing rules that prevent providers enrolling in these counties from serving beneficiaries in Broward.” However, through data analytics, we have determined that these state licensure restrictions are not adequate deterrents to prevent a provider from enrolling in one county and servicing beneficiaries in other counties. In some cases, CMS has observed that providers are servicing beneficiaries located over 300 miles from their practice location.
As a result of this and other data analyses, CMS has determined that it is necessary to expand these moratoria to be statewide. Accordingly, beginning on the effective date of this document, no new HHAs will be enrolled in Medicare, Medicaid, or CHIP with a practice location in Florida, Illinois, Michigan, or Texas unless their enrollment application has already been approved but not yet entered into PECOS for Medicare or the State Provider/Supplier Enrollment System for Medicaid and CHIP as of the effective date of this document. Additionally, no new Part B non-emergency ground ambulance supplier will be enrolled into Medicare, Medicaid, or CHIP with a practice location in Texas, New Jersey, or Pennsylvania unless their enrollment application has already been approved but not yet entered into PECOS for Medicare or the State Provider/Supplier Enrollment System for Medicaid and CHIP as of the effective date of this document.
Beneficiary access to care in Medicare, Medicaid, and CHIP is of critical importance to CMS and its State partners, and CMS carefully evaluated access for the target moratorium locations. CMS recognizes the increased risk of beneficiary access to care issues when implementing statewide moratoria. In order to address this issue, we have performed a detailed access to care analysis for all moratoria states, and identified the counties with lower saturation of home health and Part B ground ambulance providers or suppliers.
CMS does not currently have the regulatory authority to implement an exception process to respond to beneficiary access to care issues; therefore, concurrently with the statewide moratoria implementation, CMS is announcing a demonstration under the authority provided in Section 402(a)(l)(J) of the Social Security Amendments of 1967 (42 U.S.C. 1395b-l(a)(l)(J)) that waives certain authorities and allows for such exceptions. The demonstration will, among other things, allow for access to care-based exceptions to the moratoria in certain limited circumstances. This will allow enrollment of a provider or supplier after a heightened review of that provider has been conducted.
CMS has determined that this exception process will also apply to
Details of the demonstration may be found at elsewhere in this issue of the
CMS is executing its authority under sections 1866(j)(7), 1902(kk)(4), and 2107(e)(1)(D) of the Act to extend and implement temporary enrollment moratoria on HHAs for all counties in Florida, Illinois, Michigan, and Texas, as well as Part B non-emergency ground ambulance suppliers for all counties in New Jersey, Pennsylvania, and Texas.
Section 1866(j)(7)(B) of the Act states that there shall be no judicial review under section 1869, section 1878, or otherwise, of a temporary moratorium imposed on the enrollment of new providers of services and suppliers if the Secretary determines that the moratorium is necessary to prevent or combat fraud, waste, or abuse. Accordingly, our regulations at 42 CFR 498.5(l)(4) state that for appeals of denials based on a temporary moratorium, the scope of review will be limited to whether the temporary moratorium applies to the provider or supplier appealing the denial. The agency's basis for imposing a temporary moratorium is not subject to review. Our regulations do not limit the right to seek judicial review of a final agency decision that the temporary moratorium applies to a particular provider or supplier. In the preamble to the February 2, 2011 (76 FR 5918) final rule with comment period establishing this regulation, we explained that “a provider or supplier may administratively appeal an adverse determination based on the imposition of a temporary moratorium up to and including the Department Appeal Board (DAB) level of review.” We are clarifying that providers and suppliers that have received unfavorable decisions in accordance with the limited scope of review described in § 498.5(l)(4) may seek judicial review of those decisions after they exhaust their administrative appeals. However, we reiterate that section 1866(j)(7)(B) of the Act precludes judicial review of the agency's basis for imposing a temporary moratorium.
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
CMS has examined the impact of this document 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 Social Security 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 regulatory actions with economically significant effects ($100 million or more in any1 year). This document will prevent the enrollment of new home health providers and Part B non-emergency ground ambulance suppliers in Medicare, Medicaid, and CHIP. Though savings may accrue by denying enrollments, the monetary amount cannot be quantified. After the imposition of the initial moratoria on July 31, 2013, 889 HHAs, and 19 ambulance companies in all geographic areas affected by the moratoria had their applications denied. We have found the number of applications that are denied after 60 days declines dramatically, as most providers and suppliers will not submit applications during the moratoria period. Therefore, this document does not reach the economic threshold, and thus is not considered a major action.
The RFA requires agencies to analyze options for regulatory relief 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. CMS is not preparing an analysis for the RFA because it has determined, and the Secretary certifies, that this document will 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 an action may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, CMS defines a small rural hospital as a hospital that is located outside of a metropolitan statistical area (MSA) for Medicare payment purposes and has fewer than 100 beds. CMS is not preparing an analysis for section 1102(b) of the Act because it has determined, and the Secretary certifies, that this document will not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any regulatory action whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2015, that threshold is approximately $146 million. This document will have no consequential effect on state, local, or tribal governments or on the private sector.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed regulatory action (and subsequent final action) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. Because this document does not impose any costs on state or local governments, the requirements of Executive Order 13132 are not applicable.
In accordance with the provisions of Executive Order 12866, this document was reviewed by the Office of Management and Budget.
Department of State.
Final rule.
This rule adopts as final certain changes proposed to the Department of State Acquisition Regulation (DOSAR) to provide procedural changes relating to the suspension and debarment process.
This rule is effective September 2, 2016.
Ms. Colleen Kosar, Policy Division, Office of the Procurement Executive, A/OPE, 2201 C Street NW., Suite 1060, State Annex Number 15, Washington, DC 20520. Telephone: 703-516-1685. Email:
The Department of State published a Notice of Proposed Rulemaking (NPRM), Public Notice 9479 at 81 FR 17121, March 28, 2016, with a request for comments. A summary of the proposed changes and the reasons therefor were included in the NPRM. The comment period closed May 27, 2016. The Department did not receive any substantive comments on the rule. One correspondent raised matters that were not relevant to this rulemaking. The Department is now adopting the proposed rule as a final rule without change.
In accordance with the provisions of the Administrative Procedure Act (APA) governing rules promulgated by federal agencies that affect the public (5 U.S.C. 552 and 553), the Department published this rulemaking as a proposed rule and invited public comment. In accordance with the APA, this rulemaking will be effective 30 days after publication.
The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This determination was based on the fact that the changes proposed in this update have no impact on small businesses. The number of small businesses considered for suspension or debarment will not grow or shrink as a result of the proposed changes. The Department analyzed the suspension/debarment actions that occurred in FY14 and no small businesses were impacted.
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Act of 1995.
This rule is not a major rule as defined by the Small Business Regulatory Enforcement Act of 1996 (5 U.S.C. 801
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). E.O. 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department of State does not consider this rule to be an “economically significant regulatory action” under Executive Order 12866. The Department has reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Orders and finds that the benefits of updating this rule outweigh any costs, which the Department assesses to be minimal.
This 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.
The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.
The rule imposes no new or revised information collections under the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35).
Administrative practice and procedure, Government procurement.
For the reasons stated in the preamble, the Department of State amends 48 CFR chapter 6 as follows:
22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter 1.
(a)
(2) Referrals for consideration of debarment shall include, as appropriate and available—
(i) The cause for debarment (see FAR 9.406-2);
(ii) A statement of facts;
(iii) Copies of supporting documentary evidence and a list of all necessary or probable witnesses, including addresses and telephone numbers, together with a statement concerning their availability to appear at a fact-finding proceeding and the subject matter of their testimony;
(iv) A list of all contractors involved, either as principals or as affiliates, including current or last known home and business addresses and ZIP codes;
(v) A statement of the acquisition history with such contractors;
(vi) A statement concerning any known pertinent active or potential criminal investigation, criminal or civil court proceedings, or administrative claim before Boards of Contract Appeals; and
(vii) A statement from each DOS organizational element affected by the debarment action as to the impact of a debarment on DOS programs.
(3) As deemed appropriate, the debarring official may conduct investigations to supplement the information provided in the referral, or may request investigations by the Office of the Inspector General or other Department office.
(b) * * *
(2) In response to the debarment notice, if the contractor or its representative notifies the debarring official within 30 days after receipt of the notice that it wants to present information and arguments in person to the debarring official, that official, or a designee, shall chair such a meeting. The oral presentation shall be conducted informally and a transcript need not be made. However, the contractor may supplement its oral presentation with written information and arguments for inclusion in the administrative record.
(3) Pursuant to FAR 9.406-3(b)(2), the contractor may request a fact-finding proceeding.
(4) The debarring official shall designate a fact-finding official and shall provide the fact-finding official with a copy of all documentary evidence considered in proposing debarment. Upon receipt of such material, the fact-finding official shall notify the contractor and schedule a hearing date.
(5) In addition to the purposes provided in FAR 9.406-3(b)(2), the hearing is intended to provide the debarring official with findings of fact based on a preponderance of evidence submitted to the fact-finding official and to provide the debarring official with a determination as to whether a cause for debarment exists, based on the facts as found.
(6) The fact-finding proceeding shall be conducted in accordance with procedures determined by the fact-finding official. The rules shall be as informal as is practicable, consistent with FAR 9.406-3(b). The fact-finding official is responsible for making the transcribed record of the hearing, unless the contractor and the fact-finding official agree to waive the requirement for a transcript.
(7) The fact-finding official shall deliver written findings and the transcribed record, if made, to the debarring official. The findings shall resolve any facts in dispute based on a preponderance of the evidence presented and recommend whether a cause for debarment exists.
(c) * * *
(2) When a determination is made to initiate action, the debarring official shall provide to the contractor and any specifically named affiliates written notice in accordance with FAR 9.406-3(c).
(d)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This final rule sets forth regulations to revise procedures and requirements for filing import, export, and re-export documentation for certain fishery products to meet requirements for the SAFE Port Act of 2006, the Magnuson-Stevens Fishery Conservation and Management Act (MSA), other applicable statutes, and obligations that arise from U.S. participation in regional fishery management organizations (RFMOs) and other arrangements to which the United States is a member or contracting party. Specifically, NMFS sets forth regulations to integrate the collection of trade documentation within the government-wide International Trade Data System (ITDS) and require electronic information collection through the automated portal maintained by the Department of Homeland Security, Customs and Border Protection (CBP). Under this
This final rule is effective September 20, 2016, except for the revision to § 300.184, which is effective August 3, 2016.
Christopher Rogers, Office for International Affairs and Seafood Inspection, NOAA Fisheries (phone 301-427-8350, or email
The Security and Accountability for Every Port Act of 2006 (SAFE Port Act, Pub. L. 109-347) requires all Federal agencies with a role in import admissibility decisions to collect information electronically through the ITDS. The Department of the Treasury has the U.S. Government lead on ITDS development and Federal agency integration. CBP developed Automated Commercial Environment (ACE) as an internet-based system for the collection information for ITDS. The Office of Management and Budget (OMB), through its e-government initiative, oversees Federal agency participation in ITDS, with a focus on reducing duplicate reporting across agencies and migrating paper-based reporting systems to electronic information collection.
The term ITDS refers to the integrated, government-wide project for the electronic collection, use, and dissemination of the international trade and transportation data Federal agencies need to perform their missions, while the term ACE refers to the “single window” system through which the trade community will submit data related to imports and exports. Detailed information on ITDS is available at:
Numerous Federal agencies are involved in the regulation of international trade and many of these agencies participate in the import, export and transportation-related decision-making process. Agencies also use trade data to monitor and report on trade activity. NMFS is a partner government agency in the ITDS project because of its role in monitoring the trade of certain fishery products. Electronic collection of seafood trade data through a single portal will result in an overall reduction of the public reporting burden and the agency's data collection costs, will improve the timeliness and accuracy of admissibility decisions, and increase the effectiveness of applicable trade restrictive measures.
On December 29, 2015, NMFS published a notice of proposed rulemaking for this action (80 FR 81251) to codify NMFS procedures for collecting information electronically through the ITDS. NMFS prepared a regulatory impact review of this action, which is available from NMFS (see
A number of changes from the proposed rule were made to clarify the regulatory text and to take account of other final rules affecting 50 CFR part 300 that became effective after the proposed rule for ITDS integration was published.
Although the ITDS single window concept is built on the ACE platform as the reporting mechanism for the trade sector and the source for accessing trade data by the partner agencies, there is a distinction between reporting procedures for imports and exports. The system used to electronically transmit export filings is called the Automated Export System (AES). The primary document for instructing the trade sector on the data requirements for export filing is the Automated Export System Trade Interface Requirements (AESTIR). The primary instructional document for Partner Government Agency (PGA) export requirements is the “Appendix Q” to AESTIR. This document is comparable to the Customs and Trade Automated Interface Requirements (CATAIR) “Appendix PGA” for import transactions. While each PGA has issued a separate Implementation Guide for import requirements as a supplement to CATAIR, all guidance to the trade sector for PGA export requirements is detailed within the AESTIR Appendix Q documents.
The CBP Web page that contains the primary information on export requirements is:
NMFS amended the regulatory text for the HMS ITP at 50 CFR 300.181 through 300.189 to reflect the implementation of the electronic bluefin tuna catch document program (81 FR 18796, April 1, 2016).
NMFS amended 50 CFR 300.184 to address the exemption for bigeye tuna described in the Response to Comments section below under the heading “Bi-weekly Reporting.”
NMFS amended 50 CFR part 300.322(a) to clarify that only resident agents in the United States are eligible to be issued the International Fisheries Trade Permit (IFTP). Entities that are not resident in the United States may obtain the IFTP only via a resident agent application.
NMFS amended 50 CFR 300.322(a) and 300.323 to clarify the various transactions which pertain to seafood previously imported for purposes other than immediate consumption and for
NMFS revised 50 CFR 300.323 to clarify that all imports and exports of covered commodities, including shipments otherwise eligible for the de minimis value exemption, must be filed in ACE or AES, as applicable, in order to collect the NMFS-required information. NMFS also revised 50 CFR 300.324(b) to clarify that de minimis value imports (valued at $800 or less; see 19 U.S.C. 1321(a)(2)(C)) and exports (valued at $2500 or less; see 15 CFR 30.37(a) and 15 CFR 30.2(a)(iv)(F)) are subject to the prohibition on importing/exporting fish or fish products regulated under 50 CFR 300 subpart Q without a valid IFTP or without submitting complete and accurate information through ACE or AES, as applicable.
Low value shipments are not exempt from statutory and regulatory requirements to collect information to support admissibility determinations and to report to the respective regional fishery management organizations on U.S. trade in fish products within the scope of each program. Under the SAFE Port Act, NMFS is required to collect information electronically and through the single window. Therefore, NMFS requires the use of ACE or AES, as applicable, to submit required information. However, CBP may provide other reporting mechanisms for different entry types and/or de minimis value shipments. If these alternative CBP mechanisms can collect all of the NMFS-required information and transmit that information to NMFS, importers and exporters may use these mechanisms to fulfill NMFS reporting requirements.
In publishing the proposed rule for ITDS integration of current trade monitoring programs, NMFS incorrectly numbered the sections of the proposed new subpart R to 50 CFR part 300. A final rule amending regulations implementing the High Seas Fishing Compliance Act (HSFCA) was published on October 16, 2015 (80 FR 62488). That final rule added a new subpart Q to 50 CFR part 300, with sections numbered §§ 300.330 through 300.341. In subsequently proposing a new Subpart R for the ITDS integration regulations, NMFS numbered sections from 300.320 through 300.324.
In order to maintain the correct sequence of section numbers, NMFS is now redesignating existing subpart Q as new subpart R. This final rule then inserts a new subpart Q for the ITDS regulations with sections numbered in the correct order. Given the placement of HSFCA regulations in the new subpart R, conforming amendments are needed for cross-references to HSFCA requirements which exist in 50 CFR 600.705 and 50 CFR 660.2.
NMFS received 12 public comments on the proposed rule. Comments were received from the National Customs Brokers and Forwarders Association of America (NCBFAA), Traffic/World Wildlife Fund/Oceana, Bumble Bee Seafoods, Tri Marine Management Company LLC, and two individuals potentially affected by new requirements in this rule.
This rule is published under the authority of AMLRCA of 1984, 16 U.S.C. 2431
The NMFS Assistant Administrator has determined that this final rule is consistent with the provisions of these and other applicable laws.
This final rule has been determined to be not significant for the purposes of Executive Order 12866.
As explained above, this final rule revises text at 50 CFR 300.184 that provides an exemption from documentation requirements for bigeye tuna destined for canneries. Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this specific provision of the final rule, because notice and comment would be unnecessary and contrary to the public interest. This text was inadvertently removed in an August 29, 2012 final rule (77 FR 52259), and NMFS only became aware of that fact as it was reviewing and responding to public comments on this current rulemaking. Providing for public comment at this time is unnecessary and contrary to the public interest, as NMFS and industry have been operating as if the exemption remained in place. Further, NMFS never intended to change the exemption and thus never analyzed its removal. Because this aspect of the rule relieves a restriction by reinserting an exemption to documentation requirements, it is not subject to the 30-day delayed effectiveness provision of the APA pursuant to 5 U.S.C. 553(d)(1).
The Chief Counsel for Regulations certified that this rule is not expected to have a significant economic impact on a substantial number of U.S. small entities (80 FR 81255, December 29, 2015).
Although a new IFTP will be established for the import, export or re-export of regulated products under the AMLR, HMS ITP and TTVP programs, this new permit generally represents a consolidation of information contained in existing permits and should actually result in fewer reporting or recordkeeping requirements. Data sets to be entered electronically to determine product admissibility are already required to be submitted in paper form under the respective trade programs. Thus, NMFS anticipates that U.S. entities will not be significantly affected by this action because it generally does not pose new or additional burdens with regard to the collection and submission of information necessary to determine product admissibility.
With regard to the possible economic effects of this action, per the response to Question 13 of the supporting statement prepared for the Paperwork Reduction Act analysis (available from
This action will not affect the volume of seafood trade or alter trade flows in the U.S. market. Although the rule will require traders under the TTVP to obtain an IFTP, which they are not currently required to do, NMFS expects that the consolidated IFTP will have no impact on, or will actually reduce, the overall administrative burden on the public; those parties currently required to obtain two separate permits under the AMLR and HMS ITP programs will be required to obtain only one consolidated permit under this rule.
The consolidated permitting and electronic reporting program established under this rulemaking will not have significant adverse or long-term economic impacts on small U.S. entities. This rule has also been determined not to duplicate, overlap, or conflict with any other Federal rules. Thus, the requirements and prohibitions in the rule will not have a significant economic impact on a substantial number of small entities. Consequently, a regulatory flexibility analysis is not required and none has been prepared.
This rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under control number 0648-0732. When new reporting burdens for the three electronic reporting requirements under this rule (IFTP, data set submission, and admissibility document submission) are compared to current reporting burdens approved for the separate paper-based programs, it is estimated to result in an overall net burden decrease of 4,225 hours and $63,650.
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
Administrative practice and procedure, Exports, Fish, Imports, Indians, Labeling, Marine mammals.
Administrative practice and procedure, Antarctica, Canada, Exports, Fish, Fisheries, Fishing, Imports, Indians, Labeling, Marine resources, Reporting and recordkeeping requirements, Russian Federation, Transportation, Treaties, Wildlife.
Administrative practice and procedure, Confidential business information, Fisheries, Fishing, Fishing regulations, Fishing vessels, Foreign
Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian natives, Indians, Northern Mariana Islands, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR parts 216, 300, 600, and 660 are amended as follows:
16 U.S.C. 1361
(f) * * *
(2)
(i) * * *
(A)
(D)
(ii) * * *
(A)
(D)
(iii) * * *
(A)
(B)
(C)
(3)
(i) A properly completed FCO, and its attached certifications and statements as described in § 216.91(a), must accompany the required CBP entry documents that are filed at the time of, or in advance of, importation.
(ii) FCOs and associated certifications and statements as described in § 216.91(a) must be provided electronically to CBP as indicated in paragraph (f)(2) of this section.
(iii) FCOs that accompany imported shipments of tuna destined for further processing in the United States must be endorsed at each change in ownership and submitted to the Administrator, West Coast Region, by the last endorser when all required endorsements are completed. Such FCOs must be submitted as specified in § 216.93(d)(2).
(f)
(g) * * *
(2)
16 U.S.C. 951
The revision and addition read as follows:
(o) Ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of, any fish imported, exported or re-exported in violation of this part.
(p) Import, export, or re-export any fish regulated under this part without a valid International Fisheries Trade Permit as required under § 300.322 or applicable shipment documentation as required under § 300.323.
(b)
(1) Accurately maintain all reports and records required by their IFTP and this subpart;
(3) Within the time specified in the IFTP requirements, submit a copy of such reports and records to NMFS at an address designated by NMFS.
(c) * * *
(6) * * *
(i) * * *
(A) * * *
(
(7) * * *
(i) * * *
(A) * * *
(
The revisions read as follows:
(a) * * *
(1) A dealer importing, or re-exporting AMLR, or a person exporting AMLR, must possess a valid IFTP issued under § 300.322 and file, as specified under § 300.323, the required data sets electronically with CBP at the time of, or in advance of importation or exportation. Required data set has the same meaning as § 300.321 (
(2) An AMLR may be imported into the United States if its harvest has been authorized by a U.S.-issued individual permit or its importation has been authorized by an IFTP and, in the case of frozen
(4) An IFTP or preapproval issued under this section does not authorize the harvest or transshipment of any AMLR by or to a vessel of the United States.
(b)
(d)
(e)
(f)
(g)
(1)
(2)
(h)
(j)
(b) Import into, or export or re-export from, the United States any AMLRs without applicable catch documentation as required by § 300.107(c), without an IFTP as required by § 300.114(a)(1), or in violation of the terms and conditions for such import, export or re-export as specified on the IFTP.
(r) Without a valid first receiver permit issued under this subpart, receive AMLRs from a vessel or receive AMLRs from a vessel without a valid harvesting permit issued under this subpart.
(ii) Import into, or export or re-export from, the United States any AMLRs harvest by a vessel of the United States without a valid harvesting permit issued under this subpart.
The additions and revisions read as follows:
An importer, entering for consumption any fish or fish products regulated under this subpart, harvested from any ocean area, into the United States, or an exporter exporting or re-exporting such product, must possess a valid International Fisheries Trade Permit (IFTP) issued under § 300.322.
(a) Biweekly reports. Any person trading fish and fish products regulated under this subpart and required to
(3) A biweekly report is not required for export consignments of bluefin tuna when the information required on the biweekly report has been previously supplied on a biweekly report submitted under § 635.5(b)(2)(i)(B) of this title. The person required to obtain a trade permit under § 300.322 must retain, at his/her principal place of business, a copy of the biweekly report which includes the required information and is submitted under § 635.5(b)(2)(i)(B) of this title, for a period of 2 years from the date on which each report was submitted to NMFS.
(b)
(c)
(d)
(e)
(a) Except as noted in paragraphs (b) and (c) of this section, the following fish or fish products are subject to the documentation requirements of this subpart, regardless of ocean area of catch, and must be reported under the appropriate heading or subheading numbers from the Harmonized Tariff Schedule of the United States (HTS):
(1) Bluefin tuna,
(2) Southern bluefin tuna,
(3) Frozen bigeye tuna,
(4) Swordfish, and
(5) Shark fins.
(b) For bluefin tuna, southern bluefin tuna, frozen bigeye tuna, and swordfish, fish parts other than meat (
(c) Bigeye tuna caught by purse seiners or pole and line (bait) vessels and destined for canneries within the United States, including all U.S. commonwealths, territories, and possessions, may be imported without the documentation required under this subpart.
The revisions read as follows:
(a) * * *
(2)
(ii)
(
(iii) * * *
(A) Imports that were previously re-exported and were subdivided or consolidated with another consignment before re-export, must also be accompanied by an original, completed, accurate, valid, approved and properly validated, species-specific re-export certificate. An image of such document, an image of the original import document, and the required data set must be filed electronically with CBP via ACE.
(3)
(ii) For Atlantic bluefin tuna, this requirement must be satisfied electronically by entering the specified information into the ICCAT eBCD
(b) * * *
(2)
(i) For Atlantic bluefin tuna, this requirement must be satisfied by electronic completion of a consignment document in the ICCAT eBCD system, unless NMFS provides otherwise through actual notice or
(ii) For non-Atlantic bluefin tuna, this requirement must be satisfied by completion of a paper consignment document, and electronic filing of an image of such documentation and the required data set with CBP via AES.
(3)
(ii) For Atlantic bluefin tuna, this requirement must be satisfied electronically by entering the specified information into the eBCD system as directed in paragraph (b)(2)(i) of this section, unless NMFS provides otherwise through actual notice or
(c) * * *
(2)
(A) For Atlantic bluefin tuna, these requirements must be satisfied by electronic completion of a re-export certificate in the ICCAT eBCD system, unless NMFS provides otherwise through actual notice or
(B) For non-Atlantic bluefin tuna, these requirements must be satisfied by completion of a paper re-export certificate, and electronic filing of an image of such documentation and the required data set with CBP via AES.
(ii) If a consignment of fish or fish products regulated under this subpart, except bluefin tuna or shark fins, that was previously entered for consumption as described in paragraph (c)(1) of this section is not subdivided into sub-consignments or consolidated with other consignments or parts thereof, for each such re-export consignment, a permit holder must complete the intermediate importer's certification on the original consignment document and note the entry number previously issued by CBP for the consignment at the top of the document. Such re-exports do not need a re-export certificate and the re-export does not require validation. An electronic image of the consignment document with the completed intermediate importer's certification and the required data set must be filed electronically with CBP via AES at the time of re-export.
(3)
(ii) For Atlantic bluefin tuna, this requirement must be satisfied electronically by entering the specified information into the ICCAT eBCD system as directed in paragraph (c)(2)(i)(A) of this section, unless NMF provides otherwise through actual notice or
(a) Falsify information required on an application for a permit submitted under § 300.322.
(b) Import as an entry for consumption, purchase, receive for export, export, or re-export any fish or fish product regulated under this subpart without a valid trade permit issued under § 300.322.
(c) Fail to possess, and make available for inspection, a trade permit at the permit holder's place of business, or alter any such permit as specified in § 300.322.
(m) Fail to electronically file via ACE a validated consignment document and the required data set for imports at time of entry into the Customs territory of the United States of fish or fish products regulated under this subpart except shark fins, regardless of whether the importer, exporter, or re-exporter holds a valid trade permit issued pursuant to § 300.322 or whether the fish products are imported as an entry for consumption.
(n) Import or accept an imported consignment of fish or fish products regulated under this subpart, except shark fins, without an original, complete, accurate, approved and properly validated, species-specific consignment document and re-export certificate (if applicable) with the required information and exporter's certification completed.
The regulations in this subpart are issued under the authority of the Atlantic Tunas Convention Act of 1975 (ATCA), the Magnuson-Stevens Fishery Conservation and Management Act, the Tuna Conventions Act of 1950, and the Antarctic Marine Living Resources Convention Act of 1984. These regulations implement the applicable recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT) for the conservation and management of tuna and tuna-like species in the Atlantic Ocean, the Inter-American Tropical Tuna Commission (IATTC) for the conservation and management of highly migratory fish resources in the eastern Pacific Ocean, and the Commission for the Conservation of Antarctic Marine Living Resources so far as they affect vessels and persons subject to the jurisdiction of the United States. These regulations are also issued under the Marine Mammal Protection Act of 1972, the Dolphin Protection Consumer Information Act and the Security and Accountability for Every Port Act of 2006. The requirements in this subpart may be incorporated by reference in other regulations under this title.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
Any person, including a resident agent for a nonresident entity (see 19 CFR 141.18), who imports as defined in § 300.321, exports, or re-exports fish or fish products regulated under this sub-part from any ocean area, must file all reports and documentation required under the AMLR trade program, HMS ITP, and TTVP as specified under this title and under other regulations that incorporate by reference the requirements of this subpart. For imports, specific instructions for electronic filing are found in Customs and Trade Automated Interface Requirements (CATAIR) Appendix PGA (
In addition to the prohibitions specified in §§ 300.4, 300.117, 300.189, 600.725 and 635.71 of this title, it is unlawful for any person subject to the jurisdiction of the United States to:
(a) Violate any provision of this subpart, or the conditions of any IFTP issued under this subpart,
(b) Import, export or re-export fish or fish products regulated under this subpart, including imports or exports otherwise eligible for the de minimis value exemption from filing requirements under CBP procedures, without a valid IFTP as required under § 300.322 or without submitting complete and accurate information as required under § 300.323.
5 U.S.C. 561 and 16 U.S.C. 1801
(g)
16 U.S.C. 1801
(c) Fishing activities on the high seas are governed by regulations of the High Seas Fishing Compliance Act set forth in 50 CFR part 300, subparts A and R.
National Marine Fisheries Service (NMFS), National Oceanic and
Temporary rule; closure.
NMFS implements an accountability measure (AM) for the commercial sector for the lesser amberjack, almaco jack, and banded rudderfish complex (other jacks complex) in the South Atlantic for the 2016 fishing year through this temporary rule. NMFS projects that commercial landings of the other jacks complex will reach their combined commercial annual catch limit (ACL) by August 9, 2016. Therefore, NMFS closes the commercial sector for this complex on August 9, 2016, through the remainder of the fishing year in the exclusive economic zone (EEZ) of the South Atlantic. This closure is necessary to protect the lesser amberjack, almaco jack, and banded rudderfish resources.
This rule is effective 12:01 a.m., local time, August 9, 2016, until 12:01 a.m., local time, January 1, 2017.
Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email:
The snapper-grouper fishery of the South Atlantic includes lesser amberjack, almaco jack, and banded rudderfish, and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The combined commercial ACL for the other jacks complex is 189,422 lb (85,920 kg), round weight. Under 50 CFR 622.193(l)(1)(i), NMFS is required to close the commercial sector for the other jacks complex when the commercial ACL has been reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial sector for this complex is projected to reach its ACL by August 9, 2016. Therefore, this temporary rule implements an AM to close the commercial sector for the other jacks complex in the South Atlantic, effective 12:01 a.m., local time August 9, 2016.
The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having lesser amberjack, almaco jack, or banded rudderfish on board must have landed and bartered, traded, or sold such species prior to 12:01 a.m., local time, August 9, 2016. During the closure, the bag limit specified in 50 CFR 622.187(b)(8) and the possession limits specified in 50 CFR 622.187(c) apply to all harvest or possession of lesser amberjack, almaco jack, or banded rudderfish in or from the South Atlantic EEZ. These bag and possession limits apply in the South Atlantic on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, regardless of whether such species were harvested in state or Federal waters. During the closure, the sale or purchase of lesser amberjack, almaco jack, or banded rudderfish taken from the EEZ is prohibited.
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of the fish in the other jacks complex, a component of the South Atlantic snapper-grouper fishery, and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.193(l)(1)(i) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and public comment.
This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the commercial sector for the other jacks complex constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the AM itself has been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect the other jacks complex since the capacity of the fishing fleet allows for rapid harvest of the commercial ACL. Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established commercial ACL.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
Office of General Counsel, U.S Department of Energy.
Notice of public workshop.
This document provides information on a public workshop to discuss the U.S. Department of Energy's (DOE) notice and request for comment on a proposed collection of information. DOE developed the proposed collection of information in connection with the notice of proposed rulemaking on the Convention on Supplementary Compensation for Nuclear Damage Contingent Cost Allocation (NOPR) in which it proposed regulations to establish a retrospective risk pooling program covering nuclear suppliers that may be required under certain circumstances to pay for any contribution by the United States government to the international supplementary fund created by the Convention for Supplementary Compensation for Nuclear Damage.
DOE will hold a public workshop on Friday, September 16, 2016 from 9 a.m. to 12 noon, in Washington, DC. DOE will accept comments, data, and information received no later than October 3, 2016, which is the close of the comment period on the Notice. DOE will accept for consideration questions or suggestions on topics for comment in advance of the public workshop, by Wednesday, September 7, 2016.
The public workshop will be held at the U.S. Department of Energy, Forrestal Building, Room 1E-245, 1000 Independence Avenue SW., Washington, DC 20585-0121. For details regarding attendance at the public workshop see the Public Participation section of this notice.
Any comments submitted on the proposed information collection must identify docket number DOE-HQ-2014-0021 and/or regulatory information number (RIN) 1990-AA39. Comments may be submitted using any of the following methods:
1.
2.
3.
Sophia Angelini, Attorney-Adviser, Office of General Counsel for Civilian Nuclear Programs, GC-72, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; Telephone (202) 586-0319.
Elsewhere in this issue of the
DOE held an information session on the proposed regulation on January 7, 2015, followed by a day-long public workshop on February 20, 2015 (80 FR 4227). On March 9, 2015, DOE granted an extension of the public comment period on the NOPR to April 17, 2015 (80 FR 12352). The extension notice highlighted areas of particular attention for public comment, and indicated DOE's intent to conduct additional data and information gathering in response to and in consideration of comments provided in the public review and comment process. In sum, commenters on the NOPR suggested that DOE's proposed formula to calculate the retrospective premium payment was unnecessarily complex, reporting requirements for nuclear suppliers were unduly burdensome, and additional data and information on nuclear suppliers and exports were needed to support the rulemaking and enable the public to provide DOE with meaningful comments.
DOE is now proposing this information collection to gather such additional data and information from the nuclear industry in support of further development of its rulemaking. Since receiving public comments on the NOPR, and as suggested in those comments, DOE has conducted additional information and data gathering involving other relevant federal agencies. While DOE continues to review and consider this additional information and data, the proposed information collection is necessary to provide information not reported to or available from other federal agencies to inform and advance the rulemaking process. In addition, the information and data requested in the proposed information collection reflect in part comments submitted by the public on recommended risk allocation formulas and related information and data needs. One commenter, the Nuclear Energy Institute, provided a specific and detailed recommendation on an industry model for a retrospective risk
The proposed information collection is a one-time effort to facilitate development of the regulation; it is separate from and not intended to be the same as the information that would be collected in connection with any reporting requirements that would take effect after promulgation of a final regulation.
Upon approval of the information collection, and following review and analysis of the information and data obtained from nuclear suppliers in response, DOE will determine whether it is appropriate to issue a supplemental proposed regulation. As this process advances, DOE also intends to engage the public in additional opportunities for review and comment on the rulemaking, including on any supplemental proposal that is issued.
To facilitate discussion at the public workshop, DOE encourages participants to provide views and comments on the proposed information collection form which may be viewed at
If you plan to attend the public workshop, please notify Alencia Jenkins at (202) 586-0426 or by email:
Due to the REAL ID Act implemented by the Department of Homeland Security (DHS), there have been recent changes regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Drivers' licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required. DHS has determined that regular drivers' licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, American Samoa, Arizona, Louisiana, Maine, Massachusetts, Minnesota, New York, Oklahoma and Washington. Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; an Enhanced ID-Card issued by the states of Minnesota, New York, or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Drivers' License); or a military ID or other Federal government issued Photo-ID card.
DOE requires visitors with laptop computers to be checked upon entry into the building. Any person wishing to bring these devices into the Forrestal Building will be required to obtain a property pass. Visitors should avoid bringing these devices, or allow an extra 45 minutes to check in. Please report to the Visitors' Desk to have these devices checked before proceeding through security.
The Department will designate a DOE official to preside at the public workshop and may also use a professional facilitator to aid discussion. A court reporter will be present to record the proceeding and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public workshop. Interested parties may submit comments on the proposed information collection at any point until the end of the comment period.
The workshop will be conducted in an informal, conference style. DOE will allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting the proposed information collection.
Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will permit, as time allows, other participants to comment briefly on any general statements. At the end of all prepared statements, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions concerning other matters relevant to this information collection. The official conducting the public workshop will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public workshop.
In addition, DOE will accept for consideration questions or suggestions on topics for comment in advance of the public workshop, by September 7, 2016. If you wish to submit questions or suggestions on topics for comment, please submit them via one of the means provided in the
Persons who plan to present a prepared general statement may request that copies of the statement be made available at the public workshop. Such persons may submit requests, along with an advance electronic copy of their statement in PDF to the appropriate address shown in the
Persons who plan to submit questions and topic suggestions for the public workshop must do so by September 7, 2016, via email or by mail, to the appropriate address shown in the
DOE will continue to accept comments, data, and information concerning this proposed information collection before and after the public workshop, but no later than October 3, 2016. Interested parties may submit comments using any of the methods described in the
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Airbus Model A318-111 and -112 airplanes; Model A319-111, -112, -113, -114, and -115 airplanes; Model A320-211, -212, and -214 airplanes; and Model A321-111, -112, -211, -212, and -213 airplanes. This proposed AD was prompted by reports of cracks on the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's thrust reverser (T/R). This proposed AD would require repetitive inspections for cracking and corrosion of the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's T/R, and corrective actions if necessary. We are proposing this AD to detect and correct such cracking and corrosion, which could lead to T/R malfunction and, in a case of rejected takeoff at V1 on a wet runway, a consequent runway excursion, possibly resulting in damage to the airplane and injury to occupants.
We must receive comments on this proposed AD by September 19, 2016.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For Airbus service information identified in this NPRM, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
For Goodrich Aerostructures service information identified in this NPRM, contact Goodrich
You may view this referenced 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.
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union has issued EASA Airworthiness Directive 2016-0076, dated April 18, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318-111 and -112 airplanes; Model A319-111, -112, -113, -114, and -115 airplanes; Model A320-211, -212, and -214 airplanes; and Model A321-111, -112, v211, -212, and -213 airplanes. The MCAI states:
Several operators reported finding cracks, during an unscheduled inspection, on the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's thrust reverser (T/R). Investigation results revealed that these cracks were caused by a combination of stress and fatigue effects. Further analysis determined that only aeroplanes fitted with
This condition, if not detected and corrected, could lead to T/R malfunction and, in a case of rejected take off at V1 on a wet runway, a consequent runway excursion, possibly resulting in damage to the aeroplane and injury to occupants.
For the reasons described above, EASA issued AD 2016-0068, requiring repetitive inspections [for cracks and corrosion] of the T/R pivot fittings at the 3 o'clock and 9 o'clock positions and, depending on findings, accomplishment of applicable corrective action(s).
Since that [EASA] AD was issued, it was determined that the list of part numbers (P/N) of affected T/R pivot fitting, as identified in that [EASA] AD, was incomplete.
For the reason stated above, this [EASA] AD retains the requirements of EASA AD 2016-0068, which is superseded, but expands the list of affected fitting P/Ns.
You may examine the MCAI in the AD docket on the Internet at
Airbus has issued Service Bulletin A320-70-1003, Revision 01, dated December 18, 2015. This service information describes procedures for doing inspections for cracking and corrosion of the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's T/R.
Goodrich Aerostructures has issued Service Bulletin RA32078-137, Rev. 3, dated March 14, 2016. This service information describes procedures for doing inspections for cracking and corrosion of the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's T/R, and repair of corrosion.
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 proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
We estimate that this proposed AD affects 400 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by September 19, 2016.
None.
This AD applies to the Airbus airplanes, certificated in any category, identified in paragraphs (c)(1) through (c)(4) of this AD, all manufacturer serial numbers.
(1) Airbus Model A318-111 and -112 airplanes.
(2) Airbus Model A319-111, -112, -113, -114, and -115 airplanes.
(3) Airbus Model A320-211, -212, and -214 airplanes.
(4) Airbus Model A321-111, -112, -211, -212, and -213 airplanes.
Air Transport Association (ATA) of America Code 78, Engine exhaust.
This AD was prompted by reports of cracks on the 3 o'clock and 9 o'clock pivot fittings of a CFM56 engine's thrust reverser (T/R). We are issuing this AD to detect and correct such cracking and corrosion, which could lead to T/R malfunction and, in a case of rejected takeoff at V1 on a wet runway, a consequent runway excursion, possibly resulting in damage to the airplane and injury to occupants.
Comply with this AD within the compliance times specified, unless already done.
At the applicable compliance time specified in paragraph (h) of this AD: Do a high frequency eddy current (HFEC) inspection for cracking and corrosion of each T/R pivot fitting specified in paragraphs (g)(1) and (g)(2) of this AD, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-70-1003, Revision 01, dated December 18, 2015; and Goodrich Aerostructures Service Bulletin RA32078-137, Rev. 3, dated March 14, 2016; as applicable; except as required by paragraph (i) of this AD. Do all applicable corrective actions before further flight. Repeat the inspection of the T/R pivot fittings thereafter at intervals not to exceed 60 months or 12,000 flight cycles, whichever occurs first.
(1) The 3 o'clock position T/R pivot fittings having part numbers (P/N) that are provided in paragraphs (g)(1)(i) through (g)(1)(iv) of this AD.
(i) P/N 321-200-850-6.
(ii) P/N 321-200-851-6.
(iii) P/N 321-200-852-6.
(iv) P/N 321-200-853-6.
(2) The 9 o'clock position T/R pivot fittings having P/Ns that are provided in paragraphs (g)(2)(i) through (g)(2)(iv) of this AD.
(i) P/N 321-200-800-6.
(ii) P/N 321-200-801-6.
(iii) P/N 321-200-802-6.
(iv) P/N 321-200-803-6.
At the later of the times specified in paragraphs (h)(1) and (h)(2) of this AD, do the initial inspection specified in paragraph (g) of this AD. If maintenance records cannot conclusively determine the T/R flight cycles accumulated since first installation, or the time since new, do the initial inspection required by paragraph (g) of this AD at the compliance time specified in paragraph (h)(2) of this AD.
(1) Before exceeding 10 years or 24,000 total flight cycles accumulated by the T/R, whichever occurs first since first installation on an airplane.
(2) Within 36 months or 7,200 flight cycles, whichever occurs first after the effective date of this AD.
(1) If any crack is found during any inspection required by this AD: Before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).
(2) If any corrosion is found during any inspection required by this AD and Goodrich Aerostructures Service Bulletin RA32078-137, Rev. 3, dated March 14, 2016, specifies obtaining a damage disposition from Goodrich Aerostructures: Before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA; or Airbus's EASA DOA.
As of the effective date of this AD, no person may install on any airplane a T/R pivot fitting having a part number specified in paragraph (g)(1) or (g)(2) of this AD, unless it is determined, prior to installation, that the T/R pivot fitting has accumulated less than 10 years and fewer than 24,000 total flight cycles since its first installation on an airplane, or less than 60 months and fewer than 12,000 flight cycles after having passed an inspection in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-70-1003, Revision 01, dated December 18, 2015; and Goodrich Aerostructures Service Bulletin RA32078-137, Rev. 3, dated March 14, 2016.
(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 Airbus Service Bulletin A320-70-1003, dated May 7, 2014.
(2) This paragraph provides credit for actions specified in paragraph (j) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraph (k)(2)(i), or (k)(2)(ii), or (k)(2)(iii) of this AD.
(i) Airbus Service Bulletin A320-70-1003, dated May 7, 2014; and Goodrich Aerostructures Service Bulletin RA32078-137, dated April 29, 2014.
(ii) Airbus Service Bulletin A320-70-1003, dated May 7, 2014; and Goodrich Aerostructures Service Bulletin RA32078-137, Rev. 1, dated January 26, 2015.
(iii) Airbus Service Bulletin A320-70-1003, dated May 7, 2014; and Goodrich Aerostructures Service Bulletin RA32078-137, Rev. 2, dated December 2, 2015.
The following provisions also apply to this AD:
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016-0076, dated April 18, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For Airbus service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(3) For Goodrich Aerostructures service information identified in this AD, contact Goodrich Aerostructures, 850 Lagoon Drive, Chula Vista, CA 91910-2098; telephone 619-691-2719; email
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
Postal Regulatory Commission.
Notice of proposed rulemaking; reopening of comment period.
The Commission is noticing the reopening of the comment period on a proposed rulemaking. This document informs the public of the docket's reinstatement, invites public comment, and takes other administrative steps.
The comment period for the proposed rulemaking published on February 1, 2016 (81 FR 5085) is reopened.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On February 23, 2016, the Commission granted the Postal Service's motion to suspend proceedings in the above-captioned docket.
Interested persons are invited to provide written comments in response to the Notice of Proposed Rulemaking.
As indicated in Order No. 3048, the Commission will accommodate motions concerning mail preparation changes under the Commission's general motion rules until more specific rules can be implemented under the present rulemaking.
1. The rulemaking in Docket No. RM2016-6 is reinstated.
2. Interested persons may submit comments no later than 30 days from the date of the publication of this notice in the
3. The Secretary shall arrange for publication of this document in the
By the Commission.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to amend the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for Aerospace Manufacturing and Rework Facilities. In the “Rules and Regulations” section of this
Written comments must be received by September 2, 2016.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2014-0830, at
For questions about this proposed action, contact Ms. Kim Teal, Sector Policies and Programs Division (D243-04), Office of Air Quality Planning and Standards, U.S. Environmental
This document proposes to take action on the NESHAP for Aerospace Manufacturing and Rework Facilities. We have published a direct final rule to clarify the compliance date for the handling and storage of waste in the “Rules and Regulations” section of this
If we receive no significant and relevant adverse comment, we will not take further action on this proposed rule. If we receive significant and relevant adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule.
We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the
Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source categories listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding
This proposed rule provides a compliance date of December 7, 2018, for sources subject to the requirements for handling and storage of waste in 40 CFR part 63, subpart GG.
The EPA is accepting comments only on the specific issue raised in this proposed action and the accompanying direct final rule, the compliance date for handling and storage of waste. The EPA is not reopening or accepting comment on any other aspect of the NESHAP for Aerospace Manufacturing and Rework Facilities.
For a complete discussion of the rationale, regulatory text, and all of the administrative requirements applicable to this action, see the direct final rule in the “Rules and Regulations” section of this
In proposed rule document 2016-15188 beginning on page 42802 in the issue of Thursday, June 30, 2016, make the following corrections:
1. On page 42851, in the third column, in the ninth line from the bottom, “2035” should read “2015”.
2. On page 42852, in the table, in the first column, in the seventeenth row, “E0303” should read “E0301”.
3. On the same page, in the same table, in the same column, in the final row on this page, “E0330” should read “E0130”.
4. On page 42853, in the table, in the first column, in the first row on this page, “E0335” should read “E0135”.
5. On the same page, in the same table, in the same column, in the second row on this page, “E0341” should read “E0141”.
6. On the same page, in the same table, in the same column, in the second row on this page, “E0343” should read “E0143”.
Surface Transportation Board.
Notice of proposed rulemaking.
The Surface Transportation Board (Board) proposes regulations to implement passenger rail-related dispute resolution provisions of the Fixing America's Surface Transportation Act of 2015.
Comments on this proposal are due by August 31, 2016; reply comments are due by September 30, 2016.
Comments may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the E-FILING link on the Board's Web site, at
Copies of written comments received by the Board will be posted to the Board's Web site at
Scott M. Zimmerman, (202) 245-0386. Assistance for the hearing impaired is available through Federal Information Relay Service (FIRS) at (800) 877-8339.
Title XI of the Fixing America's Surface Transportation Act of 2015 (FAST Act),
The FAST Act amends 49 U.S.C. 24905 with respect to the Board's role in resolving disputes between Amtrak and the states in determining compensation for use of the Northeast Corridor by applying the policy approved by the NEC Commission. Under section 24903(c), formerly section 24904(c), Congress gave Amtrak the authority to allow freight and commuter rail passenger operations over Amtrak's Northeast Corridor and laid out the standard for the Board to determine compensation if the parties did not reach agreement. The FAST Act creates a new subsection, section 24905(c)(4), that permits the NEC Commission, Amtrak, or public authorities providing commuter rail passenger transportation on the Northeast Corridor to request that the Board conduct dispute resolution if a dispute arises over implementation of, or compliance with, the NEC Commission's cost allocation policy. The new subsection requires the Board to establish procedures for resolving such disputes and provides that those procedures “may include the provision of professional mediation services.”
The proposed rules would add to the Board's current mediation rules at 49 CFR part 1109 a new § 1109.5 that includes provisions specific to the State-Sponsored Route Committee and the Northeast Corridor Committee, to implement the FAST Act's directive that procedures for resolving certain disputes arising from those committees “may include provision of professional mediation services.” In the proposed regulations, parties to a dispute under sections 24712 and 24905 would be permitted to request, by letter submitted to the Board's Office of Public Assistance, Governmental Affairs, and Compliance, the Board's informal assistance in securing outside professional mediation services in order to resolve certain disputes as set forth in the FAST Act, without the necessity of a formal complaint being filed with Board.
The Board invites public comment on any aspect of the procedural rules proposed here.
The proposed regulations would specify procedures related to dispute resolution of certain passenger rail transportation matters by the Board and
Administrative practice and procedure, Maritime carriers, Motor carriers, Railroads.
1. Comments on this proposal are due by August 31, 2016; reply comments are due by September 30, 2016.
2. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.
3. Notice of this decision will be published in the
4. This decision is effective on its service date.
By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman.
For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend part 1109 of title 49, chapter X, of the Code of Federal Regulations as follows:
5 U.S.C. 571
(a) In addition to the mediation procedures under this part that are available following the filing of a complaint in a proceeding before the Board, Amtrak or a State member of the State Supported Route Committee established under 49 U.S.C. 24712 may request that the Board informally assist in securing outside professional mediation services in order to resolve disputes arising from:
(1) Implementation of, or compliance with, the cost allocation methodology for State-Supported Routes developed under section 209 of the Passenger Rail Investment and Improvement Act of 2008 or amended under 49 U.S.C. 24712(a)(6);
(2) Invoices or reports provided under 49 U.S.C. 24712(b); or
(3) Rules and procedures implemented by the State Supported Route Committee under 49 U.S.C. 24712(a)(4). Such a request for informal assistance in securing outside professional mediation services may be submitted to the Board even in the absence of a complaint proceeding before the Board.
(b) In addition to the mediation procedures under this part that are available following the filing of a complaint in a proceeding before the Board, the Northeast Corridor Commission established under 49 U.S.C. 24905, Amtrak, or public authorities providing commuter rail passenger transportation on the Northeast Corridor may request that the Board informally assist in securing outside professional mediation services in order to resolve disputes involving implementation of, or compliance with, the policy developed under 49 U.S.C. 24905(c)(1). Such a request for informal assistance in securing outside professional mediation services may be submitted to the Board even in the absence of a complaint proceeding before the Board.
(c) A request for informal Board assistance in securing outside professional mediation services under paragraph (a) or (b) of this section shall be submitted by letter duly authorized to be submitted to the Board by the requesting party. The request letter shall be addressed to the Director of the Board's Office of Public Assistance, Governmental Affairs, and Compliance, and shall include a concise description of the issues for which outside professional mediation services are sought. The Office of Public Assistance, Governmental Affairs, and Compliance shall contact the requesting party in response to such request within 14 days of receipt of the request.
Surface Transportation Board (the Board or STB).
Notice of proposed rulemaking.
In this decision, the Board grants in part a petition for rulemaking filed by the National Industrial Transportation League seeking revised reciprocal switching regulations. The Board proposes new regulations governing reciprocal switching in Docket No. EP 711 (Sub-No. 1), which would allow a party to seek a reciprocal switching prescription that is either practicable and in the public interest or necessary to provide competitive rail service.
Comments are due by September 26, 2016. Replies are due by October 25, 2016. Requests for ex parte meetings with Board Members are due by October 10, 2016 and meetings will be conducted between October 25, 2016 and November 14, 2016. Meeting summaries are to be submitted within two business days of the ex parte meeting.
Comments and replies may be submitted either via the Board's e-filing format or in paper format. Any person using e-filing should attach a document and otherwise comply with the instructions found on the Board's Web site at “
Allison Davis at (202) 245-0378. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Competitive access generally refers to the ability of a shipper or a competitor railroad to use the facilities or services of an incumbent railroad to extend the reach of the services provided by the competitor railroad. The Interstate Commerce Act makes three competitive
On July 7, 2011, the National Industrial Transportation League (NITL) filed a petition to institute a rulemaking proceeding to modify the Board's standards for reciprocal switching. The Board took public comment and held a hearing on the issues raised in the petition. After consideration of the petition and the comments and testimony received, the Board is granting NITL's petition in part and instituting a rulemaking proceeding in Docket No. EP 711 (Sub-No. 1) to modify the Board's standards for reciprocal switching. Because we are proposing rules in a separate sub-docket, we will also close the docket in Docket No. EP 711.
Reciprocal switching can occur as part of a voluntary arrangement between carriers, or it may be ordered by the Board. The statutory provision governing the Board's authority to order reciprocal switching arrangements was first enacted by Congress in the Staggers Rail Act of 1980, Public Law 96-448, 94 Stat. 1895 (Staggers Act). Under the Staggers Act, the agency may require rail carriers to enter into reciprocal switching agreements,
In 1985, the Board's predecessor agency, the Interstate Commerce Commission (ICC), adopted regulations pertaining to competitive access, including reciprocal switching.
The following year, in 1986, the ICC decided its first reciprocal switching case under the new regulations. In
[W]e think it correct to view the Staggers [Act] changes as directed to situations where some competitive failure occurs. There is a vast difference between using the Commission's regulatory power to correct abuses that result from insufficient intramodal competition and using that power to initiate an open-ended restructuring of service to and within terminal areas solely to introduce additional carrier service.
On appeal of
[The
Since adoption of the agency's competitive access regulations in 1985, the regulations have not changed substantively. Few requests for reciprocal switching have been filed with the agency since then, and in none of those cases has the Board granted a request for reciprocal switching.
In June 2011, the Board held a public hearing in
Specifically, NITL proposes regulations under which Board-ordered competitive switching by a Class I rail carrier would be mandatory if four criteria were met: (1) The shipper (or group of shippers) is served by a single Class I rail carrier; (2) there is no effective intermodal or intramodal competition for the movements for which competitive switching is sought; (3) there is or can be “a working interchange” between a Class I carrier and another carrier within a “reasonable distance” of the shipper's facility; and (4) switching is safe and feasible and would not unduly hamper the carrier's ability to serve existing shippers. (
NITL's proposal includes several conclusive presumptions. With respect to the criterion that no effective competition exists, NITL proposes two presumptions. Specifically, a shipper would be conclusively presumed to lack effective intermodal or intramodal competition where either: (a) The rate for the movement for which switching is sought has a revenue-to-variable cost ratio of 240% or more (R/VC
With respect to the criterion that there is a working interchange within a reasonable distance, NITL also proposes two presumptions. Specifically, the presence of a working interchange within a reasonable distance of the shipper's facility would be presumed if either: (a) The shipper's facility is within the boundaries of a “terminal” of the Class I rail carrier, at which cars are “regularly switched,” or (b) the shipper's facility is within 30 miles of an interchange between the Class I rail carrier and another rail carrier, at which cars are “regularly switched.” (
Following receipt of NITL's petition, the Board received a number of replies to the petition. The Board initially deferred consideration of NITL's petition pending a review of the comments received in Docket No. EP 705, in a decision served on November 4, 2011. In a decision served on July 25, 2012, the Board, without instituting a rulemaking proceeding, sought comments and further study of a number of issues with the NITL proposal, and subsequently received comments and replies. The Board also received oral testimony in a hearing held on March 25 and 26, 2014. For a list of the numerous parties that have participated in this proceeding at various stages, see the Appendix.
Some commenters generally support modifying the Board's competitive access regulations in a manner similar to NITL's proposal, but disagree over the precise changes the Board should adopt. For example, although some parties support using R/VC
Moreover, some shipper groups that generally support NITL's proposal acknowledge that their members would have few opportunities to qualify for reciprocal switching under the proposal. (ARC Comments 13; Agricultural Parties Reply 4-5.) Additionally, many shippers or shipper groups question whether the NITL proposal would in fact increase competition or have an appreciable impact on rates. Olin contends that NITL's proposal is flawed because it is “premised on the false assumption that the railroads are actually interested in competing for business.” (Olin Comments 6.) The Chlorine Institute argues that NITL's proposal would not ensure that any rate offered by a second carrier would be reasonable or competitive. (Chlorine Institute Comments 1-2.) Agricultural Parties, though not opposing NITL's proposal, state that the Board “should not
Rail carriers and rail interests oppose NITL's proposal for a variety of reasons. They contend that the proposal is unnecessary because shippers are concerned more about rates than access to additional rail carriers, as revealed in the testimony given in Docket No. EP 705. (CSXT Comments 21-23; KCS Comments 3-7.) Moreover, rail carriers argue that the proposal is unwise because it would favor a small group of shippers to the detriment of others. (AAR Comments 5-6, Joint V.S. Eakin & Meitzen 3-5; CEI Reply 3; NSR Reply 28-30.) Additionally, they contend that the proposal would have serious, adverse effects on rail service, carrier revenues, network efficiency, and incentives to invest in the rail network. (
Rail carriers and carrier interests also argue that the NITL proposal is legally flawed. They contend that it is unlawful because Congress “ratified” the
Rail interests also question the practicality of NITL's proposal, argue that there are too many unknowns regarding its parameters for it to be easily implemented, and contend that these unknowns will lead to increased litigation before the Board. These unknowns, according to the carriers, include matters such as access pricing, agreement terms, yard and line capacity, service levels, routing issues, labor protection, environmental impacts, general switching standards and procedures, whether the 75% presumption for lack of effective competition applies regardless of price level or availability of other modes of transportation, how the 30-mile limit would be calculated (specifically, whether it would be route miles or radial miles), and whether qualifying for mandatory switching lasts in perpetuity. (
Commenters also disagreed on the impact the proposal would have on the railroad industry. Based on analyses of waybill data, supporters of NITL's proposal argue that the proposal would affect a relatively modest amount of traffic and carrier revenue. (DOT Comments 2-3; NITL Comments 43; NITL Reply 23; USDA Comments 10-11.) NITL estimates that 4% of carloads on the networks of the four larger Class I rail carriers (BNSF, CSXT, NSR, and UP) under “full competition”
Many commenters in both this proceeding and in Docket No. EP 705 expressed the view that the agency's decision to narrow its discretion under 11102(c)—by requiring anticompetitive conduct—has proven, over time, to set an unrealistically high bar for shippers to obtain reciprocal switching, as demonstrated by the fact that shippers have not filed petitions for reciprocal switching in many years, despite expressing concerns about competition.
In other contexts where the Board has observed that important available remedies have become dormant, the agency has examined the underlying regulations and pursued modifications, where appropriate.
But there have also been many changes that have occurred in the rail industry since
For these reasons, the Board concludes that the agency's regulations and precedent, in which the public interest and competition statutory bases for reciprocal switching were consolidated into a single competitive abuse standard, makes less sense in today's regulatory and economic environment. Therefore, to the extent that the ICC adopted a single anticompetitive act standard in awarding reciprocal switching under 11102(c) in
As discussed above, the Board has broad discretion under 11102(c) to require carriers to enter into reciprocal switching arrangements when they are practicable and in the public interest or necessary to provide competitive rail service. The agency's primary duty in exercising its statutory reciprocal switching discretion is to ensure it does so in a manner that is not “manifestly contrary” to the statute.
Even though it adopted one set of regulations in 1985, the agency retains broad authority to revise its statutory interpretation and the resulting regulations. It is an axiom of administrative law that an agency's adoption of a particular statutory interpretation at one point in time does not preclude later different interpretations.
In proposing new reciprocal switching rules, the Board has provided a reasoned explanation for departing from past precedent and has explained why the rules are a permissible exercise of its jurisdiction under 11102. The agency is free to do so because nothing in the plain language of 11102 [then 11103] required the agency in 1985 to adopt the anticompetitive act framework proposed by AAR and NITL. Neither of the two statutory bases for reciprocal switching—practicable and in the public interest, or necessary to provide competitive rail service—mandates a finding that a rail carrier has engaged in anticompetitive conduct. Although the ICC chose to order reciprocal switching only when there had been a “competitive failure,” the agency appeared to recognize that the anticompetitive act standard was merely one approach of several it could take.
The arguments offered by NSR and CSXT do not persuade us that the Board lacks authority to alter its interpretation of 11102. NSR suggests that ratification requires only that Congress was aware of an issue and reenacted the statutory provision without change, but NSR ignores the searching analysis ordinarily performed by courts to determine whether there was some affirmative expression of approval by Congress. (
Here, while Congress in ICCTA reenacted the reciprocal switching provision without change, CSXT and NSR do not cite any legislative history in which Congress even mentioned the agency's interpretation of former 11103 (now 11102), much less voiced approval for it. The absence of any such affirmation or discussion by Congress, combined with judicial recognition that reciprocal switching is a matter of agency discretion, renders the ratification doctrine inapplicable here.
Nor have NSR and CSXT persuaded us that the doctrine of ratification can be used to wholly eliminate the agency's broad policy discretion, particularly where that broad discretion and the potential for varying, reasonable interpretations of 11102 have been judicially recognized prior to legislative reenactment. In reviewing the competitive access rules adopted in
Having determined that the ICC's interpretation of 11102, including its anticompetitive conduct requirement, may no longer be appropriate and that the agency has the authority to revise its reciprocal switching regulations, the Board must appropriately balance the competing policy considerations in proposing new regulations. To do so, we will first examine the concerns that we have with some aspects of the proposed regulations put forth by NITL in Docket No. EP 711. We will then discuss the Board's proposed regulations in Docket No. EP 711 (Sub-No. 1), including how they differ from both NITL's approach and the agency's current regulations.
The Board has reviewed NITL's petition and the numerous comments and testimony in this docket. We conclude that NITL's proposal, while a valuable starting point for new reciprocal switching regulations, does not, on its own, strike the appropriate policy balance. The Board is chiefly concerned that NITL's approach, with its substantial reliance on conclusive presumptions, would lead to problems regarding fairness among different categories of shippers. The Board prefers a reciprocal switching standard that makes the remedy more equally available to all shippers, rather than a limited subset of shippers, and that would allow the Board to examine reciprocal switching on a case-by-case basis.
NITL's use of multiple presumptions raises questions of fairness in terms of who would be able to take advantage of the NITL proposal and who would not. Whatever presumptions are adopted—whether those proposed by NITL or others—lines would be drawn that would favor some shippers (for example, those within a 30-mile radius of an interchange) over other shippers (for example, those outside the 30-mile radius). Under NITL's proposal, some shippers who want reciprocal switching might not be eligible for improved access to reciprocal shipping because they do not meet the criteria.
The record here suggests that shippers of certain commodities, particularly chemical shippers, would be the major beneficiaries of the conclusive presumptions proposed by NITL, as these shippers move traffic with higher R/VC ratios and thus would be more likely to meet the R/VC
Our concerns about the issue of fairness are reinforced by comments regarding the potential impacts of NITL's proposal on shippers that would
After reviewing these comments, we are concerned that reciprocal switching based on the proposed conclusive presumptions could have adverse effects on categories of shippers not eligible under NITL's proposal. If NITL's proposal places downward pressure on the rates of those shippers who are eligible, then there may be an incentive for railroads that cannot make up any shortfall to raise the rates of ineligible shippers or degrade service in an effort to cut costs. While these incentives might exist to some degree with any increase in reciprocal switching (a remedy expressly authorized by Congress), we are concerned about the effects on categories of shippers who have less access to relief under a presumption-based approach.
For these reasons, the Board prefers a reciprocal switching standard that makes the remedy more equally available to all shippers, rather than a limited subset of shippers. Imposing reciprocal switching on a case-by-case basis would also allow the Board a greater degree of precision when mandating reciprocal switching than is afforded under the approach advanced by NITL. We believe such an approach would allow the Board to better balance the needs of the individual shipper versus the needs of the railroads and other shippers. Therefore, although the Board's proposal is guided in many instances by NITL's proposal, we are deviating from NITL's proposal in several respects. We are granting NITL's petition to institute a rulemaking in part, closing the proceeding in Docket No. EP 711, and instituting a rulemaking proceeding in Docket No. EP 711 (Sub-No. 1). The Board's proposal is outlined below.
In developing new reciprocal switching regulations, we begin by looking back to Congress' directive, as set forth in the statute (11102(c)). As noted, we must also weigh and balance the various rail transportation policy (RTP) factors enumerated in 49 U.S.C. 10101.
It has long been the position of the agency and the courts that 11102 (and other Staggers Act routing provisions) were not designed to provide shippers with full, open access routing.
In determining whether to adopt competitive new access rules, the Board must also weigh and balance the various rail transportation policy (RTP) factors enumerated in 49 U.S.C. 10101.
We believe that one way to reinterpret 11102(c) and undo the restriction on access to reciprocal switching is to adhere more closely to the statutory language than the ICC did, thereby broadening the framework under which reciprocal switching could be justified. By explicitly recognizing Congress' decision to provide two distinct pathways to obtain reciprocal switching—practicable and in the public interest
The proposed regulations would revise the Board's reciprocal switching rules to promote further use and availability of reciprocal switching, but—consistent with the agency's and the courts' long-established precedent—they would not provide shippers unfettered open access to carriers and routes. Indeed, one of the Board's concerns is the potential for operational challenges in gateways and terminals that are vital to the fluidity of the rail network. Most major gateways and terminals (including St. Louis, Memphis, Houston, Minneapolis-St. Paul, Los Angeles, and Kansas City, to name a few) are served by at least two Class I carriers. In Chicago, the most important hub in the rail network, there are six Class I carriers, as is also the case in New Orleans. As has been demonstrated by real-world instances, operational issues in the gateways and terminals can easily spread to other parts of the rail network. The service crises of the late 1990s
Under the proposal, the availability of reciprocal switching would not be presumed based on one-size-fits-all criteria, but instead would be based on factual determinations derived from the evidence provided by the parties. Pursuant to the RTP, we believe this approach would be fairer than both the current regulations as well as the NITL proposal in EP 711. Specifically, as discussed below, a particularized analysis is warranted.
In this notice of proposed rulemaking, we propose to remove references to reciprocal switching from 49 CFR part 1144 (which also governs the prescriptions of through routes) and to create a new Part 1145 to govern reciprocal switching under either of the two statutory prongs provided in 11102(c). The proposed regulations can be found in below.
The first prong under which a party could obtain a reciprocal switching prescription is by showing that the proposed switching would be practicable and in the public interest. The ICC has previously explained that there is no mechanical test for determining what is practicable and in the public interest, and the totality of the circumstances should be considered.
The Board proposes three criteria that shippers must satisfy to demonstrate that reciprocal switching is practicable and in the public interest: (1) That the facilities of the shipper(s) and/or receiver(s) for whom such switching is sought are served by Class I rail carrier(s); (2) that there is or can be a working interchange between the Class I carrier servicing the party seeking switching and another Class I rail carrier within a reasonable distance of the facilities of the party seeking switching; and (3) that the potential benefits from the proposed switching arrangement outweigh the potential detriments. In making this third determination, in addition to questions about operational feasibility and safety, the Board may consider any relevant factor including, but not limited to: The efficiency of the route, access to new markets, the impact on capital investment, the impact on service quality, the impact on employees, the amount of traffic that would use the switching arrangement, the impact on the rail transportation network, and the RTP factors. Notwithstanding these three showings, however, the Board will not find a switching arrangement to be practicable and in the public interest if either rail carrier shows that the proposed switching is not feasible or is unsafe, or that the presence of such switching will unduly hamper the ability of that carrier to serve its shippers.
The non-exhaustive list of factors included within the proposed regulation provides a sufficient basis for parties to argue that a switching prescription would or would not be practicable and in the public interest. The Board will not attempt to formalize the precise showings that parties would make in a given case to address the third factor or the rail carrier arguments against switching, which are all intended to be flexible. However, parties should present these factors to the Board with specificity relating to the factual circumstances of each case. Individual reciprocal switching proceedings are not an appropriate forum to litigate, for example, the general merits of reciprocal switching as a statutory remedy, the general health of the rail industry, or revenue adequacy. Accordingly, we expect that parties' presentations would be focused on the particular proposed switching arrangement and would not attempt to litigate broad regulatory policies. In designing case-specific presentations on these issues, we believe that the Board's current petition for exemption process is instructive. 49 U.S.C. 10502. Under the petition for exemption process, the Board considers whether the application of a particular statutory provision is necessary to carry out the RTP with regard to a particular action.
The second prong under which a party could obtain a reciprocal switching prescription is by showing
Under both prongs, either of the railroads that would potentially be subject to a reciprocal switching order may attempt to show as an affirmative defense that the proposed switching is not feasible or is unsafe, or that the presence of such switching will unduly hamper the ability of that carrier to serve its shippers. If a railroad carries its burden in making this showing, the Board will not order reciprocal switching. In addressing these issues, parties might present evidence regarding: Traffic density; the line's capacity; yard capacity; right-of-way widths; grade separations; drainage; hazardous materials; network effects; and characteristics of the surrounding area (
Unlike the agency's current regulations, neither prong of these proposed regulations requires a showing of anticompetitive conduct. But removal of this requirement does not create “open access” or “on demand” routing.
Several of the factors in each of these prongs stem from NITL's proposal. For example, both prongs of the Board's proposal require a showing that there is or can be a working interchange within a reasonable distance, as did NITL. And both provide that a switching arrangement would not be established if either rail carrier shows that the proposed switching is not feasible or is unsafe, or that such switching would unduly hamper the ability of the carrier to serve its shippers. There are several additional aspects of the rules that differ from NITL's proposal, which we describe in greater detail below. However, the most notable is the absence of conclusive presumptions; as previously described, the Board would make an individualized determination on the facts of each case under the proposed rules.
We will now address specific aspects of the proposed rules, including, where relevant, how the proposal deviates from NITL's proposal.
Under both prongs of the proposed regulations, prescriptions of reciprocal switching would be limited to instances in which both the incumbent railroad and the competing railroad are Class I carriers. NITL's proposal specifically limited the proposed remedy to situations where the incumbent railroad was a Class I carrier by requiring that the party seeking switching be “served by rail only by a single, Class I rail carrier (or a controlled affiliate).” (NITL Pet. 67.) Under NITL's proposal, reciprocal switching would be ordered between this Class I rail carrier and “another carrier.” NITL states that its proposal thus does not distinguish between Class I and Class II or III carriers vis-à-vis the competing carrier. (NITL Pet. 53.)
The only commenter to address this question in detail, ASLRRA, states that, “if the Board decides to adopt the NITL petition, it should expressly limit the application to situations in which no Class II or Class III railroad participates at any point in the movement of the traffic whether or not the small railroad appears on the waybill.” (
Although the ICC rejected a request to exempt smaller carriers from its reciprocal switching regulations in
Under both prongs of the proposed regulations, the party seeking switching must show that “there is or can be a working interchange between the Class I carrier servicing the party seeking switching and another Class I rail carrier within a reasonable distance of the facilities of the party seeking switching.” This showing, while based on NITL's proposal, does not include any conclusive presumption as to what is or is not a reasonable distance or what is or is not a working interchange. (
The proposal also deviates from NITL's insofar as it would define the
Under the competition prong of the proposed regulations, a petitioner for switching must show that intermodal and intramodal competition is not effective with respect to the movements for which switching is sought. This aligns with one of the elements of NITL's proposal, which would have made reciprocal switching available “only for movements that are without effective inter- or intra-modal competition.” (NITL Pet. 7.) However, for the reasons discussed above, the conclusive presumptions proposed by NITL have not been adopted. Applying this factor without conclusive presumptions, according to NITL, would involve “an individualized inquiry in light of the applicant's relevant facts and circumstances.” (NITL Reply 35-36.)
The Board already has a framework for conducting such an individualized inquiry—specifically, in determining the reasonableness of rates, the Board performs a market dominance analysis.
The Board proposes to apply the market dominance test to determine whether a movement is without effective intermodal or intramodal competition.
NITL and several other commenters express concern regarding the potential effects of a reciprocal switching order on market dominance determinations in rate reasonableness cases. (
At least one railroad commenter appears to view the situation similarly—that is, in market dominance analyses, the Board would assess a reciprocal switching order in the same way as other transportation alternatives to determine whether or not it provides effective competition. (
There is no need to issue a blanket rule that the existence of a reciprocal switching order would (or would not) preclude a finding of market dominance in rate cases. Instead, a reciprocal switching prescription should be treated in the same way as any other transportation alternative that would be assessed in our market dominance inquiry. AAR and BNSF provide no support for their claims that reciprocal switching would automatically be a source of
Pursuant to 49 U.S.C. 11102(c)(1), “[t]he rail carriers entering into [reciprocal switching ordered by the Board] shall establish the conditions and compensation applicable to such [switching], but, if the rail carriers cannot agree upon such conditions and compensation within a reasonable period of time, the Board may establish such conditions and compensation.” Thus, the determination of access fees is left, by statute, to the carriers in the first instance.
To the extent that the Board would become involved in establishing switching fees (
Although NITL did not address access pricing in its petition for rulemaking, in its opening comments in response to the Board's order requesting additional information, it uses a simplified version of the Canadian interswitching model, arguing that the Canadian access pricing model is “rigorously determined by the Canadian Transportation Agency, on the basis of railway costs and other information supplied by the Canadian carriers and . . . is designed to cover both variable costs and a share of the carriers' fixed costs.” (NITL Comments 31-32.)
Highroad, Diversified CPC, and Roanoke Cement favor adoption of the Canadian interswitching model without modification. (Highroad Comments 22; Diversified CPC Comments 8-10; Roanoke Cement Comments 9-10.) They contend that the Canadian model is straightforward and easy to implement. Although Agricultural Parties do not believe that the Board should adopt the Canadian model, they express the view that it merits further study by the Board. (Agricultural Parties Comments 19.)
Agricultural Parties also note that there are numerous U.S. terminal switching rates that might serve as a benchmark for access pricing here, but state that they are not in a position to perform the study necessary to make such an evaluation. (Agricultural Parties Comments 19-20.)
Some commenters suggest that trackage rights fees are a form of access pricing and that the Board should look to how those fees are set. GLE states that it supports the use of mutually agreed trackage rights fees or haulage rights fees for access pricing. (GLE Comments 3.) Citing the ICC's decision in
While not offering a specific methodology, some parties comment on the principles that the Board should consider if it is required to set an access price. UP, for example, argues that the access price must cover the serving railroad's actual cost of providing the switching service as well as the serving railroad's lost contribution from the long-haul. (UP Comments 61-62.) KCS argues that any proposed access standard must allow an incumbent carrier to assess switching charges that allow that carrier to move toward revenue adequacy. As such, KCS argues that a prescribed switching rate below an incumbent carrier's RSAM would be inconsistent with the RTP. (KCS Comments 38.)
Given the importance of the issue and the relative lack of detail in the record regarding access pricing methodologies, the Board will propose two alternative approaches to access pricing for public comment.
Under Alternative 1, we propose to determine access pricing based on a specified set of factors, in the event that the Board is called upon to establish compensation. Based on precedent, such factors could include the geography where the proposed switch would occur, the distance between the shipper/receiver and the proposed interchange, the cost of the service, the capacity of the interchange facility and other case-specific factors.
Under Alternative 2, we seek comment on the adoption of a variant of the agency's SSW Compensation methodology to establish switching fees, in the event that the Board is called upon to establish compensation. Although SSW Compensation is used primarily in trackage rights cases where one rail carrier is actually operating over another rail carrier's lines, many of the principles that inform the methodology would apply in the reciprocal switching fee context as well. Thus, what we call Rental Income in SSW Compensation would have an analogy in a directed switch in the form of Imputed Rental Income. A switching fee set by the Board could seek to compensate the incumbent for the expenses incurred to provide the service, plus a fair and
Parties may also comment on other potential access fee methodologies.
The Board's current regulations in Part 1144 address not only reciprocal switching under 49 U.S.C. 11102(c), but also through routes under 49 U.S.C. 10705. As explained, the Board proposes to implement the changes proposed here by separating through routes and reciprocal switching in the Board's regulations. In other words, the previously-shared regulations at Part 1144 would be modified to eliminate references to reciprocal switching, and then adopt new Part 1145 to address reciprocal switching. The Board also recognizes that, from a theoretical perspective, some of the issues addressed in this proceeding could arguably apply to through routes as well. Today's decision, however, is a proposed incremental change to the Board's competitive access regulations based on NITL's petition and the record built in response, all of which pertain to reciprocal switching specifically. Thus, aside from removing references to reciprocal switching from Part 1144, the current standards for through routes would be maintained.
Although the standard governing reciprocal switching in new Part 1145 differs from that governing through routes in Part 1144, we have attempted to model Part 1145 on Part 1144, as they both pertain to competitive access remedies that have previously been closely aligned. Thus, for example, the Board proposes to include in Part 1145 the same provision on negotiation that exists in Part 1144. To the extent that we depart from some of the language in Part 1144, we address those departures below.
Section 1144.2(a)(2) of the Board's regulations currently states that a through route or reciprocal switching order requires a finding that either “[t]he complaining shipper has used or would use the through route, through rate, or reciprocal switching to meet a significant portion of its current or future railroad transportation needs between the origin and destination,” or “[t]he complaining carrier has used or would use the affected through route, through rate, or reciprocal switching for a significant amount of traffic.” This requirement, referred to by the ICC as the “standing” requirement, was adopted because the statute at the time provided that the ICC could not suspend a proposed cancellation of a through route and/or a joint rate pursuant to former 10705 and 10707 unless it appeared that failure to suspend would cause substantial injury to the protestant.
The Board's current regulations in Part 1144 also state that “[t]he Board will not consider product competition,” and, “[i]f a railroad wishes to rely in any way on geographic competition, it will have the burden of proving the existence of effective geographic competition by clear and convincing evidence.” 49 CFR 1144.2(b)(1). The ICC adopted this language in 1985 in
As discussed above, the second factor under the proposed competition prong—the absence of effective intermodal or intramodal competition—incorporates the market dominance inquiry of 49 U.S.C. 10707 (requiring “an absence of effective competition from other rail carriers or modes of transportation”). Moreover, when the ICC adopted the current language of 1144.2(b)(1), it explained the treatment of geographic competition as being consistent with the agency's approach in evaluating market dominance. Accordingly, it is appropriate for the Board to address this question consistently in both the reciprocal switching and rate reasonableness contexts. Therefore, in proposed Part 1145, the Board instead proposes language providing that it will not consider product or geographic competition.
Finally, 1144.3(c) of the Board's regulations currently states that “[a]ny Board determinations or findings under this part with respect to compliance or non-compliance with the standards of 1144.2 shall not be given any res judicata or collateral estoppel effect in any litigation involving the same facts or controversy arising under the antitrust laws of the United States.” In adopting this provision, the ICC explained: “The parties to the agreement [NITL, AAR, and CMA, now known as ACC] have requested adoption of this rule. We only note that it is unenforceable by us.”
As the Board explained in
In this proceeding, we find good reason for a limited waiver of the Board's ex parte prohibitions. As we noted in our July 25, 2012 decision in Docket No. EP 711 in response to NITL's petition, a vigorous debate regarding the appropriate methodology for competitive access has been ongoing since at least the 1980s. There are many different (and often conflicting views) regarding the potential benefits of increased reciprocal switching to shippers and the potential impact to carriers. As was made clear in the record following NITL's petition, those potential benefits and impacts are complicated and often inter-related. Given that there has been no significant change in agency policy regarding reciprocal switching in more than 30 years, the Board believes it would be beneficial to hear directly from stakeholders on these issues and ask follow-up questions.
To ensure that the public has a complete record of the evidence and arguments that the Board will consider in its decision-making, ex parte communications in informal rulemaking proceedings require special procedures to maintain both fairness and accessibility.
The Board will disclose the substance of each meeting by posting, in Docket No. EP 711 (Sub-No. 1), a summary of the arguments, information, and data presented to the Board Member at each meeting (including the names/titles of attendees of the meeting) and a copy of any handout given or presented to the Board Member. Parties participating in ex parte meetings will be responsible for preparing the summaries, and we encourage parties to use the Board's staff-prepared summaries in
The Board will provide notice when all meeting summaries have been posted in the record, and set a comment period for replies to the meeting summaries in that decision.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, 603(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities,” 605(b). Because the goal of the RFA is to reduce the cost to small entities of complying with federal regulations, the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts only when a rule directly regulates those entities. In other words, the impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule.
The regulations proposed here are limited to Class I railroads and, thus, would not impact a substantial number of small entities.
Intramodal rail competition.
Reciprocal switching.
1. The Board proposes to amend its rules as set forth in this decision. Notice of the proposed rules will be published in the
2. The procedural schedule for Docket No. EP 711 (Sub-No. 1) is established as follows: comments regarding the proposed rules are due by September 26, 2016; replies are due by October 25, 2016; requests for meetings with Board Members are due by October 10, 2016;
3. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.
4. The Board terminates the proceeding in Docket No. EP 711.
5. This decision is effective on the day of service.
By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman. Vice Chairman Miller commented with a separate expression and Commissioner Begeman dissented with a separate expression.
The Board's regulatory mission is set out in the Rail Transportation Policy (RTP) at 49 U.S.C. 10101. Two important but competing goals in the RTP are to promote an efficient, competitive, safe and cost-effective rail network by enabling railroads to earn adequate revenues that foster reinvestment in their networks, attract outside capital, and provide reliable service, while at the same time working to ensure that effective competitions exists between railroads and that rates are reasonable where there is a lack of effective competition. As in all major rulemakings the Board undertakes, my goal here has been to develop a proposal for reciprocal switching that properly satisfies both of these goals.
In finding the appropriate balance, I believe that we have taken a prudent approach by creating a standard that is closely tied to the statutory language of 49 U.S.C. 11102(c), rather than trying to create our own standard out of the statutory language. By doing so, I believe we have been able to develop a proposal that would satisfy the competing goals, as well as effectuate Congress' express grant of authority to permit reciprocal switching in certain circumstances. And although I have no doubt both our railroad and shipper stakeholders will find things to dislike about today's proposal, I believe that it would address the most significant concern raised by each side.
For shippers, the Board would remove the anticompetitive standard that was created in Intramodal Rail Competition and Midtec Paper Corp., which has proven to be a nearly impossible bar. Regardless of whatever evidence shippers have presented in the handful of cases the agency has decided—whether it be high rates or poor service—the agency has consistently found it to be lacking. As such, it appears that the only way that a shipper could meet this standard would be to provide evidence that the railroad was intentionally behaving in an anticompetitive manner. But demonstrating such a clear intent is difficult. By eliminating the anticompetitive conduct showing, shippers will now be free to seek reciprocal switching without having to produce a smoking gun. It is undeniable that Congress gave the Board the power to order reciprocal switching, yet our existing anticompetitive standard has essentially nullified this power. The railroads' arguments that the Board should keep the existing standard essentially amount to a request that we ignore the Congressional authorization for the Board to allow shippers (or other railroads) to be able to obtain reciprocal switching in certain instances.
But even if the anticompetitive conduct standard had not proven to be unworkable, I believe that the need for such a high bar on shippers to obtain reciprocal switching no longer exists. While the anticompetitive standard may have made sense in 1985, just after de-regulation and in an era where the railroad industry was still trying to restore itself to financial health, the landscape today is much different. As we have noted in the decision, railroads are in a much better financial condition than they were three decades ago. I believe that 49 U.S.C. 11102(c) was written in a way that gives the Board flexibility to alter the standard for obtaining reciprocal switching if, based on our judgment, the balance between the two important goals described above has changed. Based on what I have observed of the railroad industry in my time at the Board, I believe that we have reached that point.
However, just because the railroads are financially stronger today does not mean that the Board should upend the existing regulatory scheme with broad, sweeping changes. While a change to the reciprocal switching standard is needed, I believe that the NITL approach swings too far in the other direction. I believe that for shippers to obtain this remedy, a shipper should still have to demonstrate that reciprocal switching is needed based on one of the reasons articulated by Congress, rather than for it to simply be presumed to be needed. Without assessing requests for reciprocal switching on a case-by-case basis (at least for now), the potential for unintended consequences is too great. For that reason, I ultimately determined that I could not support the NITL proposal.
By rejecting the NITL proposal, today's decision addresses what I consider the most significant concern raised by the railroads: that a new reciprocal switching standard will result in its widespread application, to the significant detriment of the industry's financial health and operations. By keeping in place the requirement that shippers demonstrate that it is needed on a case-by-case basis, I believe that we have addressed that concern. Removing the anticompetitive conduct requirement will likely mean that some shippers will actually now be able to obtain a reciprocal switching prescription, but I believe the criteria proposed here would enable the Board to apply it only when appropriate.
In considering how to revise the reciprocal switching standard, I have been acutely aware of the fact that the railroads are currently facing changing economic conditions. With the decline of coal traffic, which is unlikely to return to previous volumes, and declining or sluggish volume growth for other commodities, there is no doubt that the railroads today find themselves in a difficult environment. I am mindful of the concerns that additional regulation could impact their ability to weather this storm. But I do not believe that the proposal we have announced today, if adopted, would impose significant burdens on the railroad industry. Indeed, it is my hope that the Board will rarely be called upon to impose the reciprocal switching remedy, but instead, that whatever final rules we adopt will merely provide a bit more incentive for carriers to ensure that their customers' needs are being met in those instances where that is not the case. So long as a carrier meets the needs of its customers, there should be little reason for a customer to seek such a remedy. Moreover, it is my belief that today's proposal would not undo the accomplishments that have been achieved through deregulation under the Staggers Act.
That being said, I recognize that today's proposal is unlikely to be perfect. In fact, there are aspects of the proposal that still concern me. However, if the Board were to continue to delay this proceeding in order to try to develop a perfect proposal, this proceeding would never end. It is my belief that any issues with the proposal can be addressed after the Board has had an opportunity to hear from the parties. I am particularly pleased that
As a final point, I would again note my frustration that it has taken the Board five years to reach this stage. Much of this delay feels like it could have been avoided by not asking the parties to submit additional evidence in July 2012. It seems that today's decision could have been made without this additional evidence, which was not heavily relied on in reaching today's decision. As I have noted on other occasions, I find that the amount of time that it takes the Board to complete proceedings to be troubling. In addition to the inexcusably long time that our stakeholders were kept waiting, they were left in the dark as to the progress. If parties are going to have to wait unnecessarily long periods of time for outcomes, the Board could at least be more transparent on the progress of their cases. No doubt having heard such complaints from our stakeholders, Congress required the agency to begin issuing quarterly reports on its unfinished regulatory proceedings as part of the Surface Transportation Board Reauthorization Act of 2015. The benefits of this reporting are already being seen, as it has been forced the Board to set deadlines in its many long-delayed rulemakings, and the Board has even completed some that have been pending for years. It is my belief that the Board needs to develop a similar (if not the same) reporting system for its other significant proceedings. This would provide parties with greater transparency on the progress of their cases, force the Board to develop deadlines, and ensure that the agency is adhering to them.
I want to begin by commending the National Industrial Transportation League (NITL) for the considerable and thoughtful effort it went to—more than five years ago—in prompting the Board to revisit the agency's competitive switching rules. I have valued the views and knowledge of the NITL leadership and members since first meeting them when I was a young Senate staffer. Then, as now, NITL can be counted on to provide insight and to explain how businesses across the county are impacted by even the most arcane laws and regulations.
When stakeholders demonstrate that the agency's regulations or processes present too high a bar to allow their use, we have an obligation to examine whether we can improve those regulations or processes, while keeping the promotion of safe and efficient rail service at the top of our agenda. Although I have a number of questions and concerns about NITL's competitive switching proposal, many of which I shared during the April 2014 hearing, there is no dispute that since the current rules were adopted in 1985, very few reciprocal switching requests have been filed and none have been granted. As such, it is hard to believe that the existing regulations adequately implement Congress' intent that the Board order reciprocal switching when necessary.
While I may not be an advocate of the status quo, I do not casually embrace regulatory changes. Any altering of the Board's existing switching rules must be balanced, fair, and supported by analyses that indicate the changes will not have unintended consequences for our stakeholders or the public. I do not believe today's proposal meets those standards. This decision also ignores fundamental questions that the Board should have asked and answered before issuing today's proposal, and after five years, there has been ample time to do so. For example:
• The reciprocal switching proposal rejects the use of conclusive presumptions, which were argued by NITL as necessary to mitigate the complexity and costs of litigating competitive switching. What does today's proposal offer to mitigate the complexity and costs? Should the Board use rebuttable presumptions to create a more predictable process for shippers and carriers?
• The Department of Transportation estimated that NITL's proposal would affect 2.1 percent of revenue and 1.3 percent of carloads, figures that are considered significant inside the agency. What impact to revenue and carloads would be permitted under today's proposal? Once that level is reached, will the Board no longer consider new switching applications?
• The proposal seems to suggest that if the Board acts on a case-by-case basis, there is no need to assess the potential impact it could have on the rail system overall. But how can the Board provide fair and consistent switching judgments on a case-by-case basis without creating complexity and cost impacts on the one hand, and not introducing more unpredictability to the rail network on the other?
• How long will it take to process the cases envisioned under today's proposal? What is the procedural timeline? Do we have any projections for how long such a case will take to process inside the agency? Currently, the Board is struggling to determine how to meet new Congressional mandates for timeliness. How will this type of new access case (
• Given the majority's stated position that it “will not attempt to formalize the precise showings” that parties would have to make in a given case because of its desire to be “flexible,” what would a party seeking a reciprocal switch really have to demonstrate to the Board? What would the carrier have to demonstrate to convince the Board the requested switch should not be granted?
• What is the “reasonable distance” that is surprisingly left undefined in the proposal? While the language that dismisses the NITL's conclusive presumptions implies that the Board's proposal could involve switches of more than 30 miles, my briefings suggest it may be only a very short distance (
• How does today's decision mitigate impacts on network efficiency and service, particularly at major gateways and terminals? The Board has required weekly performance data reports on the Chicago hub since October 2014 because of its importance to national rail operations and the impact that congestion in that gateway can have on rail service nationwide. Should Chicago and other major gateways be excluded from new reciprocal switching requirements?
• Is permanence for a switching arrangement under the proposed new rule, which may not require robust evidence, fair to either the carrier or the other shippers impacted by that switching arrangement?
Today's decision incorporates a concern I expressed after seeing an earlier version of the proposal, which is that short line carriers be exempted from the requirements. The decision also waives the Board's rigid ex parte rules to allow the members to hear from stakeholders, as the Vice Chairman and I insisted. However, I cannot support
It is incumbent on the Board Members and staff to listen to all interested stakeholders on these issues if there is to be any hope for adopting meaningful, lawful regulations designed to better implement the agency's statutory reciprocal switching authority. And I certainly recognize that stakeholders are at a disadvantage because today's proposal, in my view, is full of gaps by design. The goal appears to be that we can slip these and other unanswered questions by now and figure them out later. I implore our stakeholders to fully engage this agency and not allow such an outcome.
I support only those aspects of the decision that waive the Board's ex parte prohibitions and exclude Class II and Class III carriers from reciprocal switching prescriptions. Otherwise, I dissent.
The Board received written and/or oral comment from the following parties in Docket No. EP 711:
Additionally, the following Members of Congress submitted comments, either individually or as joint comments:
For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend title 49, chapter X, of the Code of Federal Regulations by revising part 1144 and adding part 1145 to read as follows:
49 U.S.C. 1321, 10703, and 10705.
(a)
(a)
(1) That the prescription is necessary to remedy or prevent an act that is contrary to the competition policies of 49 U.S.C. 10101 or is otherwise anticompetitive, and otherwise satisfies the criteria of 49 U.S.C. 10705. In making its determination, the Board shall take into account all relevant factors, including:
(iii) The rates charged or sought to be charged by the railroad or railroads from which prescription is sought.
(iv) The revenues, following the prescription, of the involved railroads for the traffic in question via the affected route; the costs of the involved railroads for that traffic via that route; the ratios of those revenues to those costs; and all circumstances relevant to any difference in those ratios; provided that the mere loss of revenue to an affected carrier shall not be a basis for finding that a prescription is necessary to remedy or prevent an act contrary to the competitive standards of this section; and
(2) That either:
(i) The complaining shipper has used or would use the through route or through rate to meet a significant portion of its current or future railroad transportation needs between the origin and destination; or
(ii) The complaining carrier has used or would use the affected through route or through rate for a significant amount of traffic.
(b) * * *.
(3) When prescription of a through route or a through rate is necessary to remedy or prevent an act contrary to the competitive standards of this section, the overall revenue inadequacy of the defendant railroad(s) will not be a basis for denying the prescription.
49 U.S.C. 1321 and 11102.
(a)
(b)
(c)
(a)
(1) The Board will find a switching arrangement to be practicable and in the public interest when:
(i) The party seeking such switching shows that the facilities of the shipper(s) and/or receiver(s) for whom such switching is sought are served by Class I rail carrier(s);
(ii) The party seeking such switching shows that there is or can be a working interchange between the Class I carrier servicing the party seeking switching and another Class I rail carrier within a reasonable distance of the facilities of the party seeking switching; and
(iii) The party seeking such switching shows that the potential benefits from the proposed switching arrangement outweigh the potential detriments. In making this determination, the Board may consider any relevant factor, including but not limited to:
(A) Whether the proposed switching arrangement furthers the rail transportation policy of 49 U.S.C. 10101;
(B) The efficiency of the route under the proposed switching arrangement;
(C) Whether the proposed switching arrangement allows access to new markets;
(D) The impact of the proposed switching arrangement, if any, on capital investment;
(E) The impact of the proposed switching arrangement on service quality;
(F) The impact of the proposed switching arrangement, if any, on employees;
(G) The amount of traffic the party seeking switching would use pursuant to the proposed switching arrangement; and
(H) The impact of the proposed switching arrangement, if any, on the rail transportation network.
(iv) Notwithstanding the provisions of (a)(1)(i)-(iii) of this section, the Board shall not find a switching arrangement to be practicable and in the public interest under this section if either rail carrier between which such switching is sought to be established shows that the proposed switching is not feasible or is unsafe, or that the presence of such switching will unduly hamper the ability of that carrier to serve its shippers.
(2) The Board will find a switching arrangement to be necessary to provide competitive rail service when:
(i) The party seeking such switching shows that the facilities of the shipper(s) and/or receiver(s) for whom such switching is sought are served by a single Class I rail carrier;
(ii) The party seeking such switching shows that intermodal and intramodal competition is not effective with respect to the movements of the shipper(s) and/or receivers(s) for whom switching is sought; and
(iii) The party seeking such switching shows that there is or can be a working interchange between the Class I carrier servicing the party seeking switching and another Class I rail carrier within a reasonable distance of the facilities of the party seeking switching.
(iv) Notwithstanding the provisions of (a)(2)(i)-(iii) of this section, a switching arrangement will not be established under this section if either rail carrier between which such switching is sought to be established shows that the proposed switching is not feasible or is unsafe, or that the presence of such switching will unduly hamper the ability of that carrier to serve its shippers.
(b)
(1) In considering requests for reciprocal switching under (a)(2) of this section, the Board will not consider product or geographic competition.
(2) In considering requests for reciprocal switching under (a)(2) of this section, the overall revenue inadequacy of the defendant railroad will not be a basis for denying the establishment of a switching arrangement.
(3) Any proceeding under the terms of this section will be conducted and concluded by the Board on an expedited basis.
(a)
(b)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS is proposing modifications to the commercial retention limits for blacknose sharks and non-blacknose small coastal sharks
Written comments must be received by September 20, 2016. NMFS will hold an operator-assisted public hearing via conference call and webinar for the draft Environmental Assessment (EA) and this proposed rule on August 16, 2016, from 2 p.m. to 4 p.m. NMFS will also hold one public hearing for this proposed rule on August 24, 2016. For specific locations, dates and times, see the
You may submit comments on this document, identified by NOAA-NMFS-2016-0095, by any of the following methods:
•
•
NMFS will hold one public hearing in Cocoa Beach, FL and one conference call on this proposed rule. For specific locations, dates and times, see the
Copies of the supporting documents, including the draft EA, Regulatory Impact Review (RIR), Initial Regulatory Flexibility Analysis (IRFA), and the 2006 Consolidated Atlantic HMS FMP are available from the HMS Web site at
Guý DuBeck, Larry Redd, Cliff Hutt, or Karyl Brewster-Geisz by phone at 301-427-8503.
Atlantic sharks are directly managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and the authority to issue regulations has been delegated from the Secretary to the Assistant Administrator (AA) for Fisheries, NOAA. NMFS published in the
A brief summary of the background of this proposed action is provided below. Additional information regarding Atlantic HMS management can be found in the Draft EA for this proposed action, the 2006 Consolidated HMS FMP and its amendments, the annual HMS Stock Assessment and Fishery Evaluation (SAFE) Reports, and online at
NMFS manages four SCS species: Blacknose, Atlantic sharpnose, finetooth, and bonnethead. All of these species except blacknose sharks are managed in a management group called the “non-blacknose SCS.” Blacknose sharks were assessed separately and declared overfished with overfishing occurring and thus are managed separately, subject to a rebuilding plan. Nevertheless, gillnet fishermen in the South Atlantic area typically fish for and land all four of the SCS species. Thus, any management measure changes to either the blacknose shark or non-blacknose SCS management groups could impact all of these fishermen. Thus, while NMFS analyzed the stock impacts separately, NMFS discussed the economic impacts cumulatively at times and refer to the “overall SCS fishery,” which means the fishery for all four species in the South Atlantic management area.
This proposed rule considers modifying the commercial retention limits for blacknose sharks and non-blacknose SCS in the Atlantic region. This rulemaking only focuses on the Atlantic region since NMFS prohibited the retention and landings of blacknose sharks in the Gulf of Mexico in 2015. The action will reduce discards of non-blacknose SCS while increasing the utilization of available Atlantic non-blacknose SCS quota and rebuilding and ending overfishing of Atlantic blacknose sharks.
Since the completion of the 2007 blacknose shark stock assessment, NMFS has conducted numerous rulemakings regarding all SCS, including blacknose sharks, in order to rebuild blacknose sharks and end overfishing, consistent with the 2006 Consolidated HMS FMP. The 2007 stock assessment of blacknose sharks assessed blacknose sharks as one stock, and determined that the stock was overfished and overfishing was occurring.
On June 1, 2010 (75 FR 30484), NMFS published a final rule for Amendment 3 to the 2006 Consolidated HMS FMP that, among other things, established blacknose shark and non-blacknose SCS quotas. In the proposed rule, because of the blacknose stock status, NMFS proposed prohibiting the use of gillnet gear in waters south of North Carolina. However, based on comments received during that rulemaking that fishermen could catch non-blacknose SCS while avoiding blacknose sharks when using gillnet gear, the final rule continued to allow landings of SCS sharks with gillnet gear, but linked the quotas for the non-blacknose SCS and blacknose shark fisheries to create an incentive to avoid the incidental catch of blacknose sharks. After that rulemaking, in monthly landings updates and other documents, NMFS encouraged fishermen to avoid blacknose sharks in order to extend the non-blacknose SCS season. For the first two years under this quota linkage, fishermen successfully avoided landing blacknose sharks. This avoidance meant that both the non-blacknose SCS fishery remained open most of the year and the
In 2011, a new stock assessment for blacknose sharks was completed. This assessment concluded that there are two stocks of blacknose sharks—one in the Atlantic and one in the Gulf of Mexico and assessed them separately. The assessment for the Atlantic blacknose shark stock was accepted by the peer reviewers, and NMFS determined that the Atlantic blacknose shark stock is overfished and overfishing is occurring (76 FR 62331, October 7, 2011). The assessment for the Gulf of Mexico stock was not accepted by the peer reviewers. As such, NMFS declared the stock status to be unknown. On July 3, 2013 (78 FR 40318), NMFS published a final rule for Amendment 5a to the 2006 Consolidated HMS FMP which, among other things, divided the blacknose quota into separate regional quotas (Atlantic and Gulf of Mexico) consistent with the assessment determination that there are two separate stocks. NMFS continued to link the regional blacknose and non-blacknose SCS quotas and therefore divided the non-blacknose SCS quota into separate regional quotas as well, to parallel the division of the blacknose shark stocks. While NMFS established quotas for the two regions, those quotas were not further broken down into commercial retention limits because the quota linkages between the blacknose shark fishery and the non-blacknose SCS fishery alone were expected to create adequate incentive to avoid blacknose sharks.
More recently, NMFS has seen signs that fishermen using gillnet gear in the Atlantic region are no longer avoiding blacknose sharks. In 2012, the overall blacknose shark quota for the Atlantic and Gulf of Mexico regions was exceeded, and the blacknose shark quota in the Atlantic region was exceeded again in 2015. Additionally, the blacknose and non-blacknose SCS fisheries have been closing earlier each year (September 30, 2013 (blacknose sharks and non-blacknose SCS in the Atlantic and Gulf of Mexico regions); July 28, 2014 (blacknose sharks and non-blacknose SCS in the Atlantic region); June 7, 2015 (blacknose sharks and non-blacknose SCS in the Atlantic region)). A review of the landings data indicate the early closures are a result of some fishermen who have been landing large numbers of blacknose sharks relative to other fishermen. These early closures mean that the non-blacknose SCS quota remains underutilized (less than 40 percent was harvested in 2013 and less than 60 percent harvested in both 2014 and 2015). These closures also mean that non-blacknose SCS are discarded even if quota is available because all SCS species must be discarded once the fisheries are closed.
To reduce the discards of non-blacknose SCS while not increasing landings of blacknose sharks, on August 18, 2015 (80 FR 50074), NMFS published a final rule for Amendment 6 to the 2006 Consolidated HMS FMP. This final rule, among other things, prohibited the retention and landings of blacknose sharks in the Gulf of Mexico region. In the Atlantic region, NMFS established a management boundary along 34° N. latitude for the non-blacknose SCS fishery, removed the quota linkage between non-blacknose SCS and blacknose shark quotas north of the boundary, and prohibited the retention and landings of blacknose sharks north of that boundary since blacknose sharks are rarely caught there. South of the new management boundary, NMFS maintained the non-blacknose SCS and blacknose shark quota linkage and reduced the blacknose shark quota to account for the potential dead discards north of the boundary. Thus, in August 2015, after implementation of Amendment 6, the non-blacknose SCS fishery re-opened north of 34° N. latitude (August 18, 2015, 80 FR 50074) upon publication of the final rule. From August through December, fishermen were able to land an additional 40.5 mt dw, or 15 percent of the non-blacknose SCS quota, after the fishery reopened. However, the non-blacknose SCS fishery remained closed south of 34° N. latitude and fishermen in that area were still required to discard all non-blacknose SCS caught after June 7, 2015.
NMFS recently took action again to close the commercial blacknose shark and non-blacknose SCS fisheries in the Atlantic region south of 34° N. latitude because the commercial landings of Atlantic blacknose sharks for the 2016 fishing season were projected to exceed 80 percent of the available commercial quota (81 FR 33604; May 29, 2016). This indicates that some fishermen south of 34° N. latitude are continuing to land large numbers of blacknose sharks relative to other fishermen even though this results in earlier closures and the potential loss of access to the available non-blacknose SCS quota because of the linkage.
Additionally, since publishing Amendment 6, NMFS has received comments from fishermen and the South Atlantic Fishery Management Council stating that fishermen in the Spanish mackerel gillnet fishery with HMS permits are having to discard otherwise marketable non-blacknose SCS south of the 34° N. latitude management boundary due to the quota linkage, even though non-blacknose SCS quota remains available. Thus, in preparing this proposed rule NMFS considered alternatives to prevent the overharvest and discard of blacknose sharks, maximize the utilization of available non-blacknose SCS quota, extend the season for non-blacknose SCS fisheries, and improve economic opportunities. Specifically, NMFS considered establishing commercial retention limits within the existing quotas for either the blacknose sharks or non-blacknose SCS in the Atlantic region south of 34° N. latitude.
NMFS prepared a draft EA, RIR, and an IRFA, which present and analyze the anticipated environmental, social, and economic impacts of each alternative considered for this proposed rule. The complete list of alternatives and related analyses is provided in the draft EA/RIR/IRFA, and is not repeated here in its entirety. A copy of the draft EA/RIR/IRFA prepared for this proposed rulemaking is available from NMFS (see
NMFS considered three alternatives for this proposed action. All three alternatives would apply only in the SCS fishery south of 34°00′ N. latitude in the Atlantic region. Alternative 1, the No Action alternative, would maintain the status quo and the current regulations and practices in the blacknose and non-blacknose SCS fishery. Alternative 2 would establish a commercial retention limit for non-blacknose SCS that would be in effect once the blacknose shark quota is reached for directed shark limited access permit holders. Alternative 3 would establish a commercial retention limit for blacknose sharks for all Atlantic HMS limited access permit holders that would be in effect while the blacknose shark quota is available; once the blacknose shark quota is reached, retention of blacknose would be prohibited. Under both Alternatives 2 and 3, NMFS considered a range of three sub-alternatives.
Under Alternative 1, the No Action alternative, NMFS would not implement any new commercial retention limits for blacknose sharks or non-blacknose SCS in the Atlantic region for Atlantic shark directed limited access permit holders (shark incidental limited access permit holders are already limited to a retention limit of 16 combined SCS and pelagic sharks per trip). Instead, the blacknose and non-blacknose SCS quotas would continue to be linked by region and, south of 34°00′ N. latitude, access to both quotas would be closed when the blacknose shark quota (17.2
With regard to socioeconomic impacts, Alternative 1 would likely continue to result in underutilization of the non-blacknose SCS quota as a result of the early closure of both blacknose and non-blacknose SCS management groups. Between 2014 and 2015, the Atlantic non-blacknose SCS quota has been underutilized by an average of 314,625 lb dw (54 percent of the quota). This represents foregone revenues of $298,583 assuming an average value of $0.74/lb dw for meat and $4.18/lb dw for fins. NMFS expects that Alternative 1, the No Action alternative, would have minor adverse socioeconomic impacts on the non-blacknose SCS fisheries as it would continue to allow for underutilization of the Atlantic non-blacknose SCS quota.
Under Alternative 2, NMFS would implement a commercial retention limit for non-blacknose SCS and remove the quota linkage to blacknose sharks south of 34°00′ N. latitude. In Amendment 3 to the 2006 Consolidated HMS FMP (75 FR 30484; June 1, 2010), NMFS linked the blacknose shark and non-blacknose SCS quotas to address the blacknose shark stock determination and implement measures to rebuild and end overfishing of blacknose sharks. Without the quota linkage, fishermen would be able to continue to harvest non-blacknose SCS after the blacknose shark quota was fully harvested but would need to discard blacknose sharks once that fishery closed. While many fishermen are able to avoid blacknose sharks when fishing for non-blacknose SCS, in order to allow for any non-blacknose SCS landings after a blacknose shark closure, NMFS estimated how many blacknose sharks could potentially be discarded dead by vessels harvesting non-blacknose SCS once the blacknose shark quota (17.2 mt dw; 37,921 lb dw) has been harvested and the fishery is closed. This additional mortality would be counted against the total allowable catch of blacknose sharks upfront, and the overall commercial retention limit for blacknose shark quota would be reduced accordingly.
Under Alternative 2a, NMFS would implement a commercial retention limit of 50 non-blacknose SCS per trip once the blacknose shark quota is reached and remove the quota linkage to blacknose sharks for shark directed limited access permit holders fishing south of 34°00′ N. latitude. Under this alternative, NMFS would also reduce the baseline blacknose shark quota to 15.0 mt dw (33,069 lb dw) due to the estimated number of blacknose sharks that would be discarded dead while harvesting non-blacknose SCS (985 sharks). NMFS expects that this alternative would have minor adverse ecological impacts on blacknose sharks in the Atlantic region as this alternative would likely not change the current fishing practices and the commercial quota for blacknose sharks would still likely be landed quickly, potentially resulting in overharvests due to data reporting lags. Additionally, this alternative would have neutral ecological impacts on non-blacknose SCS in the region as fishermen could land 50 non-blacknose SCS per trip until reaching the quota, thus utilizing the non-blacknose SCS quota, without exceeding it. Overall, the commercial retention limit for non-blacknose SCS would have minor adverse ecological impacts for the SCS fishery, which means the fishery for all four SCS species in the South Atlantic management area. The reduction in blacknose shark quota could cause the closure of blacknose shark fishery even earlier in the year but this closure would no longer close the non-blacknose SCS fishery. This reduction in the blacknose shark quota would result in estimated lost revenues of $5,193 compared to the current baseline quota under Alternative 1, assuming an average value of $0.87 lb dw for meat and $4.00 lb dw for fins of blacknose sharks. However, this alternative would generate an estimated 286 additional trips landing non-blacknose SCS at 50 non-blacknose SCS per trip, generating $34,470 in revenue from for non-blacknose SCS. As such, this alternative should have minor beneficial economic impacts on the overall SCS fishery.
NMFS also analyzed two other alternatives that would implement commercial retention limits when the blacknose shark quota is reached and remove the quota linkage to blacknose sharks for shark directed limited access permit holders. Alternative 2b would establish a commercial retention limit of 150 non-blacknose SCS, and Alternative 2c would establish a commercial retention limit of 250 for non-blacknose SCS. Under Alternative 2b, the baseline blacknose shark quota would be adjusted to 10.5 mt dw (23,148 lb dw) due to the estimated number of dead discard blacknose sharks (2,956 sharks) which likely would occur in the non-blacknose SCS fishery. Similar to Alternative 2a, NMFS expects that this alternative would have minor adverse ecological impacts on the blacknose sharks in the Atlantic region as some directed permit holders could continue to land large numbers of blacknose sharks relative to other fishermen until the blacknose shark quota is landed, which could increase the amount of blacknose shark dead discards after the blacknose fishing season is closed because the quota linkage would be removed. Similar to Alternative 2a, this alternative would have neutral ecological impacts on the non-blacknose sharks in the region as fishermen could land 150 non-blacknose SCS per trip until reaching the quota, thus utilizing the non-blacknose SCS quota without exceeding it. However, this alternative would have minor adverse ecological impacts for the overall SCS fishery because dead discards would continue after the blacknose shark quota is reached. The reduction in blacknose shark quota would result in estimated lost revenues of $15,808, assuming an average value of $0.87 lb dw for meat and $4.00 lb dw for fins of blacknose sharks. This alternative would generate an estimated 286 additional trips landing non-blacknose SCS at 150 non-blacknose SCS per trip, resulting in a revenue gain of $65,139 for non-blacknose SCS. As such, this alternative
Under Alternative 2c, the baseline blacknose shark quota would be reduced to 6.1 mt dw (13,448 lb dw) due to the estimated number of dead discard blacknose sharks (4,927 sharks) which likely would occur in the non-blacknose SCS fishery under this scenario. NMFS expects that this alternative would have minor adverse ecological impacts on the blacknose sharks in the Atlantic region as some directed permit holders would continue to land large numbers of blacknose sharks relative to other fishermen until the blacknose shark quota is landed, increasing the amount of blacknose dead discards after the blacknose fishing season is closed due to the elimination of the quota linkage. This alternative would have neutral ecological impacts on the non-blacknose sharks in the region as fishermen could land 250 non-blacknose SCS per trip until reaching the quota, thus utilizing the non-blacknose SCS quota without exceeding it. Similar to Alternative 2a, the commercial retention limit for non-blacknose SCS would have minor adverse ecological impacts for the overall SCS fishery because dead discards would continue after the blacknose shark quota is reached. This alternative would result in estimated lost revenues of $26,217 assuming an average value of $0.87 lb dw for meat and $4.00 lb dw for fins of blacknose sharks. This alternative would generate an estimated 286 additional trips landing non-blacknose SCS at 250 non-blacknose SCS per trip, resulting in a revenue gain of $80,339 for non-blacknose SCS. As such, this alternative should have moderate beneficial economic impacts on the overall SCS fishery.
Under Alternative 3, NMFS would establish a commercial retention limit for blacknose sharks per trip for all Atlantic HMS limited access permit holders in the Atlantic region south of 34°00′ N. latitude when the blacknose shark quota is available; when the blacknose shark quota is reached, retention of blacknose sharks would be prohibited. To determine the number of trips that would harvest the blacknose shark quota, NMFS divided the current baseline shark quota (17.2 mt dw or 37,921 lb dw) by the product of the retention limit of the sub-alternative and 5 lb dw (which is the average weight of each blacknose shark, based on observer data). For example, under Alternative 3c, the preferred alternative, NMFS would establish a commercial retention limit of eight blacknose sharks per trip for Atlantic HMS directed and incidental limited access permit holders. This retention limit would allow an average of 40 lb dw blacknose sharks per trip (8 sharks * 5 lb dw) and would result in an estimated 948 trips to land the baseline blacknose shark quota (37,919 lb dw/40 lb dw). This retention limit is be much lower when compared to the blacknose sharks landed per trip and number of trips that harvested the quota in previous years. In 2014 and 2015, between 243 and 402 lb dw of blacknose sharks were harvested per trip, and the quota was fully harvested in approximately 156 and 94 trips, respectively. Since most fishermen prefer not to discard any fish, NMFS believes this alternative has the potential to influence fishermen to revert to the fishing practices observed in 2010 and 2011 when blacknose sharks were actively avoided when fishing for non-blacknose SCS. NMFS expects that this alternative would have moderate beneficial ecological impacts on the blacknose sharks in the Atlantic region since the lower blacknose shark landings per trip would reduce the rate of landings such that the quota is not exceeded and might result in underharvests. Thus, this alternative could aid in the rebuilding of blacknose sharks and help prevent quota exceedances. This alternative would also have neutral ecological impacts for non-blacknose SCS as NMFS expects that that quota would be fully utilized without being exceeded. Overall, the commercial retention limit for blacknose sharks would have moderate beneficial ecological impacts for the overall SCS fishery. Additionally, this alternative would also have minor beneficial socioeconomic impacts as the fishermen could still land blacknose sharks and the fishery would remain open for a longer period of time, increasing SCS revenues by as much as $98,664 a year on average if the non-blacknose SCS quota is fully utilized. Any financial losses due to underutilization of the blacknose shark quota would be minimal by comparison.
NMFS also analyzed two other blacknose shark retention limit alternatives that are not preferred at this time. Alternative 3a would establish a retention limit of 50 blacknose sharks per trip for directed limited access permit holders (shark incidental limited access permit holders would continue to be limited to a total of 16 pelagic and SCS sharks per trip). This retention limit would allow an average of 250 lb dw blacknose sharks per trip and would result in an estimated 152 trips to land the blacknose shark quota. The retention limit of 50 blacknose sharks could potentially cause the SCS fisheries to close as early as June or July if every trip landing blacknose sharks lands the full retention limit, although this is highly unlikely. Under Alternative 3b, NMFS would establish a commercial retention limit of 16 blacknose sharks per trip for directed limited access permit holders. This retention limit would allow an average of 80 lb dw blacknose sharks per trip and would result in an estimated 474 trips to land the full blacknose shark quota. NMFS expects that both of these alternatives would have minor to moderate beneficial ecological impacts on Atlantic blacknose sharks as all Atlantic shark limited access permit holders would be expected to revert to how they had been fishing in 2010 and 2011 and actively avoiding blacknose sharks when fishing for non-blacknose SCS. For non-blacknose SCS, these alternatives would have neutral impacts as the stock would be fished under the level established, resulting in a fishery that would be underutilized. Overall, establishing the commercial retention limit would have beneficial impacts for Alternatives 3a and 3b for the SCS fishery. Additionally, these alternatives would also have minor beneficial socioeconomic impacts to the Atlantic SCS fishery as they would allow for the potential full-utilization of the non-blacknose SCS quota, and potentially increase average revenues by $98,664 per year. Any foregone revenue due to under-utilization of the blacknose shark quota would be minimal in comparison.
Currently, NMFS prefers to establish a commercial retention limit of eight blacknose sharks per trip (Alternative 3c) since the retention limit would have moderate beneficial ecological impacts on blacknose sharks, neutral ecological impacts on non-blacknose SCS, and minor beneficial socioeconomic impacts for SCS fishermen because they should be able to fully utilize the non-blacknose SCS quota. NMFS does not prefer Alternative 1 (No Action alternative) since this alternative does not meet the objectives of the rule, could result in continued overharvests of the blacknose shark quota, and would continue to underutilize the non-blacknose shark SCS quota. NMFS does not prefer Alternatives 2a, 2b, and 2c establishing a commercial retention limit for non-blacknose SCS, because that could lead to an increase in dead discards of blacknose sharks while targeting non-HMS species and non-blacknose SCS depending on the commercial retention limit. In addition, the reduced blacknose shark quotas due to the estimated dead discards of blacknose sharks when the quota
In addition to the preferred alternative described above, NMFS is proposing to make two small, unrelated administrative changes to existing regulatory text. Specifically, in two locations in § 635.24(a), the regulations make reference to paragraphs (a)(4)(iv) through (vi); those cross-references are unnecessary because the Commercial Caribbean Small Boat permit under (a)(4)(iv) is a separate permit from the limited access permits and there is no (a)(4)(v) regulation. Because NMFS is already proposing changes to § 635.24(a) through this rulemaking, NMFS has decided to use this opportunity to propose removal of those cross-references. This action is administrative in nature, reflects current practice, and would not have environmental impacts or effects on current fishing operations.
Comments on this proposed rule may be submitted via
The public is reminded that NMFS expects participants at the public hearings to conduct themselves appropriately. At the beginning of each public hearing, a representative of NMFS will explain the ground rules (
Pursuant to the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that the proposed rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule would have on small entities if adopted. A description of the action, why it is being considered, and the legal basis for this action are contained below. A summary of the analysis follows. A copy of this analysis is available from NMFS (see
Section 603(b)(1) requires Agencies to describe reasons why the action is being considered. This proposed action is designed to implement management measures for the blacknose and non-blacknose SCS fisheries that will reduce dead discards of non-blacknose SCS while increasing the utilization of the Atlantic non-blacknose SCS quota and rebuilding and ending overfishing of Atlantic blacknose sharks.
Section 603(b)(2) requires Agencies to describe the objectives of the proposed rule. NMFS has identified the following objectives, which are consistent with existing statutes such as the Magnuson-Stevens Act and its objectives, with regard to this proposed action:
• Obtaining optimum yield from the blacknose and non-blacknose-SCS fisheries;
• Reducing dead discards of sharks, particularly small coastal sharks;
• Continuing to rebuild the Atlantic blacknose shark stock; and
• Ending overfishing of the Atlantic blacknose shark stock.
Section 603(b)(3) of the Regulatory Flexibility Act requires Agencies to provide an estimate of the number of small entities to which the rule would apply. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the United States, including fish harvesters. Provision is made under the SBA's regulations for an agency to develop its own industry-specific size standards after consultation with Advocacy and an opportunity for public comment (see 13 CFR 121.903(c)). Under this provision, NMFS may establish size standards that differ from those established by the SBA Office of Size Standards, but only for use by NMFS and only for the purpose of conducting an analysis of economic effects in fulfillment of the agency's obligations under the RFA. To utilize this provision, NMFS must publish such size standards in the
As of 2015, the proposed rule would apply to the approximately 224 directed commercial shark permit holders and 275 incidental commercial shark permit holders. Not all permit holders are active in the shark fishery in any given year. Active directed permit holders are defined as those with valid permits that landed one shark based on HMS electronic dealer reports. Of the 499 permit holders, only 27 permit holders landed SCS in the Atlantic region and, of those, only 13 landed blacknose sharks. NMFS has determined that the proposed rule would not likely affect any small governmental jurisdictions.
Section 603(b)(4) of the RFA requires Agencies to describe any new reporting, record-keeping and other compliance requirements. The action does not contain any new collection of information, reporting, or record-keeping requirements. The alternatives considered would adjust the commercial retention limits for the SCS fisheries, which would be a new compliance requirement for the shark fishery participants in the Atlantic region south of 34°00′ N. latitude but is similar to other compliance requirements the fishermen already follow.
Under section 603(b)(5) of the RFA, agencies must identify, to the extent practicable, relevant Federal rules which duplicate, overlap, or conflict with the proposed rule. Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements, domestic laws, and other FMPs. These include the Magnuson-Stevens Act, the Atlantic Tunas Convention Act (ATCA), the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act (ESA), the National Environmental Policy Act, the Paperwork Reduction Act, and the Coastal Zone Management Act. This proposed rule has been determined not to duplicate, overlap, or conflict with any Federal rules.
One of the requirements of an IRFA is to describe any alternatives to the proposed rule which accomplish the stated objectives and which minimize any significant economic impacts. These impacts are discussed below. Additionally, the RFA (5 U.S.C. 603(c)(1)-(4)) lists four general categories of “significant” alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and (4) exemptions from coverage of the rule, or any part thereof, for small entities.
In order to meet the objectives of this proposed rule, consistent with the Magnuson-Stevens Act, NMFS cannot establish differing compliance requirements for small entities or exempt small entities from compliance requirements. Thus, there are no alternatives discussed that fall under the first and fourth categories described above. NMFS does not know of any performance or design standards that would satisfy the objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act. As described below, NMFS analyzed several different alternatives in this proposed rulemaking and provides rationales for identifying the preferred alternatives to achieve the desired objectives.
The alternatives considered and analyzed are described below. The IRFA assumes that each vessel will have similar catch and gross revenues to show the relative impact of the proposed action on vessels.
Alternative 1, the No Action alternative, would not implement any new commercial retention limits for blacknose sharks and non-blacknose SCS in the Atlantic region south of 34°00′ N. latitude beyond those already in effect for current Atlantic shark limited access permit holders. NMFS would continue to allow fishermen with a direct limited access permit to land unlimited sharks per trip (within available quotas), and allow fishermen with an incidental permit to land 16 combined SCS and pelagic sharks per vessel per trip. Amendment 3 to the 2006 Consolidated HMS FMP established, among other things, a quota for blacknose shark separate from the SCS quota. The 2011 blacknose shark stock assessment determined that separate stocks of blacknose sharks existed in the Gulf of Mexico and the Atlantic Ocean. Amendment 5a to the 2006 Consolidated HMS FMP established, among other things, regional quotas for non-blacknose SCS and blacknose sharks in the Gulf of Mexico and the Atlantic Ocean in 2013. These blacknose shark and non-blacknose SCS quotas are linked by region and the regional SCS fishery is closed when the blacknose shark quota is reached. These linkages have resulted in the early closure of the entire SCS fishery due to high blacknose shark landings. Closure of the fishery as a result of Atlantic blacknose rapid harvest leaves the non-blacknose shark SCS quota underutilized. Between 2014 and 2015, the Atlantic non-blacknose SCS quota has been underutilized by an average of 314,625 lb dw or 54 percent of the quota. This represents an average ex-vessel loss of $298,583, assuming an average value of $0.74/lb dw for meat and $4.18/lb dw for fins. Based on the 27 vessels that landed SCS in the Atlantic, the per-vessel impact would be an approximate loss of $11,059 per year.
Alternative 2a would implement a commercial retention limit of 50 non-blacknose SCS per trip and remove the quota linkage to blacknose sharks for shark directed limited access permit holders in the Atlantic region south 34°00′ N. latitude once the blacknose shark quota is reached. Additionally, this alternative would adjust the blacknose shark quota to 15.0 mt dw (33,069 lb dw). Reduction of the blacknose shark quota would result in an average ex-vessel revenue loss of $5,193 for the fishery, while increased
Alternative 2b would implement a commercial retention limit of 150 non-blacknose SCS per trip and remove the quota linkage to blacknose sharks for shark directed limited access permit holders in the Atlantic region south 34°00′ N. latitude once the blacknose shark quota is reached. Additionally, this alternative would adjust the blacknose shark quota to 10.5 mt dw (23,148 lb dw). Reduction of the blacknose shark quota would result in an average ex-vessel revenue loss of $15,808 for the fishery, while increased landings of non-blacknose SCS would result in an overall estimated average ex-vessel revenue gain of $65,139 for the fishery. NMFS estimates that this bycatch retention limit would result in a net gain of $49,331 in average ex-vessel revenue for the fishery, or approximately $1,827 per vessel for the 27 vessels that targeted non-blacknose SCS in 2015.
Alternative 2c would implement a commercial retention limit of 250 non-blacknose SCS per trip and remove the quota linkage to blacknose sharks for shark directed limited access permit holders in the Atlantic region south 34°00′ N. latitude once the blacknose shark quota is reached. This alternative would also adjust the blacknose shark quota to 6.1 mt dw (13,448 lb dw). Reduction of the blacknose shark quota would result in an average ex-vessel revenue loss of $26,217 for the fishery, while increased landings of non-blacknose SCS would result in an estimated average ex-vessel revenue gain of $80,339 for the fishery. NMFS estimates that this bycatch retention limit would result in a net gain of $54,122 in average ex-vessel revenue for the fishery, or approximately $2,004 per vessel for the 27 vessels that targeted non-blacknose SCS in 2015.
Alternative 3a would establish a commercial retention limit of 50 blacknose sharks per trip for shark directed limited access permit holders in the Atlantic region south 34°00′ N. latitude. This alternative would most likely convert the blacknose shark fishery to an incidental fishery as the per-trip value of 50 blacknose sharks would only be $270 ($218 for meat and $52 for fins) for the estimated 13 vessels that land blacknose sharks in the Atlantic. Based on 2015 HMS electronic reporting system (eDealer) reports, 49 trips, or 32% of the overall number of trips, landed blacknose sharks in excess of a commercial retention limit of 50 blacknose sharks (250 lb dw). This alternative would likely increase the number of trips needed to fill the blacknose shark quota when compared to the average from 2010 through 2015 under Alternative 1. A retention limit of 50 blacknose sharks could potentially cause the SCS fisheries to close as early as June or July if every trip landing blacknose sharks landed the full retention limit, but this is highly unlikely.
Alternative 3b would establish a commercial retention limit of 16 blacknose sharks per trip all Atlantic shark limited access permit holders in the Atlantic region south 34°00′ N. latitude. This alternative would have minor beneficial economic impacts as a retention limit of this size would allow an average of 80 lb dw blacknose sharks per trip and would take approximately 474 trips for fishermen to land the full blacknose shark quota. Based on 2015 eDealer reports, 83 trips, or 55% of the overall number of trips, landed blacknose sharks in excess of a commercial retention limit of 16 blacknose sharks (80 lb dw). This alternative would dramatically increase the number of trips needed to fill the blacknose shark quota when compared to the yearly averages under Alternative 1. Currently, the linkage between the blacknose shark quota and the non-blacknose SCS quota causes the closure of both fisheries once the smaller blacknose shark quota is attained. NMFS expects that, under this alternative, the blacknose shark quota would not be filled and therefore would not close the SCS fisheries in the South Atlantic region. Thus, this alternative would have minor beneficial economic impacts to the Atlantic SCS fisheries as it would allow for the potential full-utilization of the non-blacknose SCS quota, and potentially increase total ex-vessel revenue by as much as $298,583 a year. However, given monthly trip rates in the Atlantic, the non-blacknose SCS quota is likely to remain under-utilized. Using calculations based on observed trip and landings rates of non-blacknose SCS in 2015, a more likely result of this alternative would be additional landings of 104,962 lb dw of non-blacknose SCS valued at $98,664, or approximately $3,654 per vessel for the 27 vessels that participated in the fishery in 2015. Any financial losses due to under-utilization of the blacknose shark quota would be minimal in comparison.
Alternative 3c, the preferred alternative, would establish a commercial retention limit of eight blacknose sharks per trip all Atlantic shark limited access permit holders in the Atlantic region south 34°00′ N. latitude. This alternative would have moderate beneficial economic impacts as a retention limit of this size would allow an average of 40 lb dw blacknose sharks per trip and would take approximately 948 trips to land the full blacknose shark quota. Based on 2015 eDealer reports, 105 trips, or 69% of the overall number of trips, landed blacknose sharks in excess of the commercial retention limit of eight blacknose sharks (40 lb dw). This alternative would dramatically increase the number of trips needed to fill the blacknose shark quota when compared to the yearly averages under Alternative 1. Currently, the linkage between the blacknose shark quota and the non-blacknose SCS quota causes the closure of both fisheries once the smaller blacknose shark quota is attained. NMFS expects that, under this alternative, the blacknose shark quota would not be filled and would not close the SCS fisheries in the Atlantic region south 34°00′ N. latitude. Thus, this would have moderate beneficial economic impacts as the fishermen would still be allowed to land blacknose sharks and the fishery would remain open for a longer period of time, significantly increasing non-blacknose SCS revenues by as much as $298,583 a year on average if the non-blacknose SCS quota is fully utilized. However, given monthly trip rates in the Atlantic, the non-blacknose SCS quota is likely to remain under-utilized. Using calculations based on observed trip and landings rates of non-blacknose SCS in 2015, a more likely result of this alternative would be additional landings of 104,962 lb dw of non-blacknose SCS valued at $98,664, or approximately $3,654 per vessel for the 27 vessels that participated in the fishery in 2015. Any financial losses due to under-utilization of the blacknose shark quota would be minimal in comparison.
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.
For the reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows:
16 U.S.C. 971
(a) * * *
(2) The commercial retention limit for LCS other than sandbar sharks for a person who owns or operates a vessel that has been issued a directed LAP for sharks and does not have a valid shark research permit, or a person who owns or operates a vessel that has been issued a directed LAP for sharks and that has been issued a shark research permit but does not have a NMFS-approved observer on board, may range between zero and 55 LCS other than sandbar sharks per vessel per trip if the respective LCS management group(s) is open per §§ 635.27 and 635.28. Such persons may not retain, possess, or land sandbar sharks. At the start of each fishing year, the default commercial retention limit is 45 LCS other than sandbar sharks per vessel per trip unless NMFS determines otherwise and files with the Office of the Federal Register for publication notification of an inseason adjustment. During the fishing year, NMFS may adjust the retention limit per the inseason trip limit adjustment criteria listed in § 635.24(a)(8).
(3) A person who owns or operates a vessel that has been issued an incidental LAP for sharks and does not have a valid shark research permit, or a person who owns or operates a vessel that has been issued an incidental LAP for sharks and that has been issued a valid shark research permit but does not have a NMFS-approved observer on board, may retain, possess, or land no more than 3 LCS other than sandbar sharks per vessel per trip if the respective LCS management group(s) is open per §§ 635.27 and 635.28. Such persons may not retain, possess, or land sandbar sharks.
(4)* * *
(ii) A person who owns or operates a vessel that has been issued a shark LAP and is operating south of 34°00′ N. lat. in the Atlantic region, as defined at § 635.27(b)(1), may retain, possess, land, or sell blacknose and non-blacknose SCS if the respective blacknose and non-blacknose SCS management groups are open per §§ 635.27 and 635.28. Such persons may retain, possess, land, or sell no more than 8 blacknose sharks per vessel per trip. A person who owns or operates a vessel that has been issued a shark LAP and is operating north of 34°00′ N. lat. in the Atlantic region, as defined at § 635.27(b)(1), or a person who owns or operates a vessel that has been issued a shark LAP and is operating in the Gulf of Mexico region, as defined at § 635.27(b)(1), may not retain, possess, land, or sell any blacknose sharks, but may retain, possess, land, or sell non-blacknose SCS if the respective non-blacknose SCS management group is open per §§ 635.27 and 635.28.
(iii) Consistent with paragraph (a)(4)(ii) of this section, a person who owns or operates a vessel that has been issued an incidental shark LAP may retain, possess, land, or sell no more than 16 SCS and pelagic sharks, combined, per vessel per trip, if the respective fishery is open per §§ 635.27 and 635.28. Of those 16 SCS and pelagic sharks per vessel per trip, no more than 8 shall be blacknose sharks.
U.S. Agency for International Development (USAID) is making efforts to reduce the paperwork burden. USAID invites the general public and other Federal agencies to take this opportunity to comment on the following proposed and/or continuing information collections, as required by the Paperwork Reduction Act for 1995. Comments are requested concerning:
(a) The accuracy of the burden estimates; (b) ways to enhance the quality, utility, and clarity of the information collected; and (c) 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.
Submit comments on or before October 3, 2016.
Sylvia Joyner, Bureau for Management, Office of Management Services, Information and Records Division, U.S. Agency for International Development, Room 2.07C, RRB, Washington, DC 20523, (202) 712-5007 or via email
Animal and Plant Health Inspection Service, USDA.
Notice.
We are announcing that the Animal and Plant Health Inspection Service intends to prepare an environmental impact statement (EIS) to evaluate the environmental impacts that may result from the approval of a new petition for nonregulated status of glyphosate-resistant creeping bentgrass (
We will consider all comments that we receive on or before September 2, 2016.
You may submit comments by either of the following methods:
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Supporting documents and any comments we receive on this docket may be viewed at
Dr. Sidney Abel, Assistant Deputy Administrator, Biotechnology Regulatory Services, APHIS, 4700 River Road, Unit 147, Riverdale, MD 20737-1238; (301) 851-3896, email:
Under the authority of the plant pest provisions of the Plant Protection Act (PPA), as amended (7 U.S.C. 7701
The regulations in 7 CFR 340.6(a) provide that any person may submit a petition to the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA) seeking a determination that an article should not be regulated under 7 CFR part 340. Paragraphs (b) and (c) of § 340.6 describe the form that a petition for a determination of nonregulated status must take and the information that must be included in the petition.
APHIS received a new petition from The Scotts Company (Scotts) and Monsanto Company (Monsanto), APHIS Petition Number 15-300-01p, seeking a determination of nonregulated status for creeping bentgrass (
A total of six notices have been published in the
Creeping bentgrass is a perennial outcrossing species, thus major issues raised by commenters focused on plant biology and agronomic consequences of it outcrossing to weedy species that may impact agriculture and/or natural ecosystems. Issues raised specifically included the distribution of seed and pollen from creeping bentgrass, hybridization with native or naturalized species, the need for additional chemicals to control glyphosate-resistant grass species that may develop due to hybridization with creeping bentgrass, increased weediness, the ability of creeping bentgrass to establish without cultivation, potential impacts on agricultural irrigation canals, and the development of herbicide-resistant weeds.
APHIS published a preliminary risk assessment
To fulfill its section 7 requirements under the Endangered Species Act, APHIS entered into consultation with the U.S. Fish and Wildlife Services (USFWS) on the first petition (03-104-01p). Subsequent to the withdrawal of the petition in September 2015, APHIS notified the USFWS that it was terminating the consultation on the petition. Information provided during the comment period on this notice of intent (NOI) will be used to update APHIS' assessment of the effects on threatened and endangered species and critical habitat (collectively referred to as listed resources) and, as appropriate and required by statute, will be shared with the USFWS as part of APHIS' commitment to protect listed resources. If APHIS enters into formal consultation, the USFWS will make a determination about whether nonregulated status of ASR368 will jeopardize the continued existence of federally listed plant and animal species.
Under NEPA, Federal agencies must examine the potential environmental
The Federal action being considered is whether to approve the petition for nonregulated status of ASR368. This notice identifies reasonable alternatives and potential issues that may be studied in the EIS. We are requesting public input and comment on the range of alternatives, and on the environmental impacts and issues stated in this NOI as well as suggestions for additional alternatives for consideration and new impacts or issues to be evaluated in the EIS for the petition.
The EIS will consider a range of reasonable alternatives. APHIS is currently considering two alternatives: (1) Take no action,
We have identified the following potential environmental issues for consideration in the EIS: Impacts on managed natural and non-agricultural lands; on agricultural production systems; on the physical environment; on biological resources; on human health; on socioeconomic issues; on federally listed threatened or endangered species; and on cultural or historic resources. In addition to providing input and comment on these issues, we are also requesting that the public provide information on the following questions during the comment period:
• What are the weed species in potential affected environments with which ASR368 may hybridize and introgress? What evidence is there that this would or could occur?
• If introgression was to occur, would the inability to identify introgression of ASR368 lead to stand failures or increasing costs for production of grass seed crops when compared to non-genetically engineered (non-GE) creeping bentgrass? What evidence is there that would support stand failure or increased costs.
• Compared to non-GE creeping bentgrass and other grasses, would deregulation of ASR368 result in its establishment and persistence in situations where it is unwanted, unintended, or unexpected (
• When compared to non-GE creeping bentgrass, could the spread of ASR368 or its relatives to areas where it is unwanted, unintended, or unexpected potentially result in adverse effects on native species or habitats, including threatened and endangered species and their habitats? What supporting information is available to conclude an adverse effect?
• Would the presence of volunteer ASR368 increase the costs and complexity of weed control for growers of non-GE creeping bentgrass and other crops? What evidence is there to support this conclusion?
• What potential changes of agronomic practices may occur as a result of the presence of ASR368 agricultural crops, including crop rotation practices, herbicide use, and tillage?
• What potential impacts on GE-free grass seed exports could result from the presence of ASR368?
• What potential impacts on conventional and organic crops could result from the presence of ARS368?
Comments that identify other issues or alternatives that should be considered for examination in the EIS would be especially helpful. All comments received during the scoping period will be carefully considered in developing the final scope of the EIS. Upon completion of the draft EIS, a notice announcing its availability and an opportunity to comment on it will be published in the
7 U.S.C. 7701-7772 and 7781-7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3.
Animal and Plant Health Inspection Service, USDA.
Notice of intent.
We are giving notice that the Secretary of Agriculture intends to renew the charter for the Secretary's Advisory Committee on Animal Health for a 2-year period. The Secretary has determined that the Committee is necessary and in the public interest.
Dr. Diane L. Sutton, Designated Federal Officer, VS, APHIS, 4700 River Road Unit 43, Riverdale, MD 20737; (301) 851-3509.
Pursuant to the Federal Advisory Committee Act (FACA, 5 U.S.C. App.), notice is hereby given that the Secretary of Agriculture intends to renew the Secretary's Advisory Committee on Animal Health (the Committee) for 2 years. The term for the renewed charter will extend from August 8, 2016, to August 7, 2018.
The Committee advises the Secretary on strategies, policies, and programs to prevent, control, or eradicate animal diseases. The Committee considers agricultural initiatives of national scope and significance and advises on matters of public health, conservation of national resources, stability of livestock economies, livestock disease management and traceability strategies, prioritizing animal health imperatives,
Animal and Plant Health Inspection Service, USDA.
Notice.
The Animal and Plant Health Inspection Service proposed to alter an existing system of records in its inventory of record systems subject to the provisions of the Privacy Act of 1974, as amended. The system of records is Veterinary Services—Records of Accredited Veterinarians, USDA-APHIS-2. The system, as proposed, has been adopted; however, we received one comment, which is addressed in this notice.
Dr. Todd Behre, Program Coordinator, National Veterinary Accreditation Program, VS, APHIS, 4700 River Road Unit 200, Riverdale, MD 20737; (518) 281-2157.
The Privacy Act of 1974, as amended (5 U.S.C. 552a), requires agencies to publish in the
On May 12, 2015, the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA) published in the
Accredited veterinarians are veterinarians authorized by APHIS to perform certain services to control and prevent the spread of animal diseases within the United States and internationally. Duties may encompass a wide range of activities relating to companion animals, livestock, poultry, horses, and other animals, including issuing certificates of veterinary inspection and health certificates for animals moving interstate or internationally; participating in animal disease surveillance and testing activities (including surveillance for emerging and foreign animal diseases); diagnosing diseases in animals; developing herd or flock health plans; and performing veterinary tasks during animal disease emergencies. Veterinarians who wish to perform work for APHIS must become nationally accredited by APHIS and then authorized by APHIS to perform accredited duties in one or more specific States or territories.
In order to ensure that a veterinarian's accreditation is in good standing and that he or she has received the appropriate level of training commensurate with his or her duties, APHIS maintains information regarding the veterinarian in the Veterinary Services—Records of Accredited Veterinarians system. APHIS maintains information about accredited veterinarians in the system in accordance with the APHIS Records Management Handbook. Data associated with accredited veterinarians (including those whose accreditation has lapsed or been revoked) will be destroyed when 45 years old. Data will also be destroyed when the accredited veterinarian is deceased. The system also contains information about veterinarians who are applicants for accredited status.
The system contains records related to the accreditation status of veterinarians. The records include name; date of birth; business name; home and business mailing addresses, telephone numbers, and email address; type of employment; State in which licensed or legally able to practice veterinary medicine; veterinary license number; veterinary medical college graduated and date of graduation; State(s) in which the veterinarian is authorized to perform accredited duties; species of animals the veterinarian treats; primary medical discipline; date of core orientation to accreditation and State where the veterinarian completed the orientation; the veterinarian's accreditation category; date of accreditation renewal; APHIS program certifications; APHIS-approved supplemental training completed; whether business contact information may be provided to members of the public; and information pertaining to any alleged or adjudicated violations of accreditation standards, including disposition of the case. The system also assigns a national accreditation number (NAN) to each registered accredited veterinarian.
We solicited comments on the notice for 30 days ending on June 22, 2015. We received one comment by that date from an organization that represents veterinarians. The commenter objected to the use of dates of birth in the system. The commenter stated that that the use of the date of birth was unnecessary and could present a vulnerability to personal identity security.
We disagree with the commenter that the use of the date of birth is unnecessary. To the contrary, the date of birth is a necessary identifier. In fact, there are three main reasons for the use of the date of birth to maintain records of accredited veterinarians.
As previously indicated, the system includes records for each accredited veterinarian, several of these, when listed together, are considered unique identifiers, such as the full name (first and last names and middle initial), date of birth, school and year of graduation, and the system-generated NAN. In some instances accredited veterinarians with the same full name also have the same year and school of graduation. In addition, some accredited veterinarians do not remember their NAN, which consists of a six-digit number that uses leading 0's. Some relay their NAN incorrectly by superimposing numbers, not using the leading 0's, etc. In these cases, the date of birth is used as the most accurate identifier.
The date of birth is also used when we find that an accredited veterinarian has a duplicate record in the database, which means there were two separate NANs created. The date of birth is the single unique identifier used to ensure that the two records do in fact belong to the same person, in which case, we combine the records under one NAN.
Lastly, we conduct classroom training sessions at major and local veterinary meetings. Attendance at training sessions is required for an accredited veterinarian to renew his or her accreditation, and each accredited veterinarian must sign in using his or her first name, last name, and date of birth as identifiers. We require the date
As to the possible vulnerability to personal identity security, as described in the system of records notice referred to above, the system is physically secured in a locked facility with access only by authorized APHIS personnel. Data is stored and backed up using protocols established by the Fort Collins, CO, data center. Access to the records in the system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions. Data available to individual users is role-based, which further limits access. Users must have USDA eAuthentication credentials and sign in using authorized logins and passwords. Employees who save spreadsheets containing data from the system are responsible for protecting the data. Files on employees' computers are also protected by encryption software and login and password requirements. On an annual basis, all users are required to undergo information security training and to sign rules of behavior. Failure to comply with rules of behavior can result in corrective actions, including written reprimands, temporary suspension from duty, reassignment, demotion, or termination, suspension of system privileges, and possible criminal prosecution.
Based on our proposal to alter the system of records and the reasons given in this document, the system will remain as proposed.
Foreign Agricultural Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act, this notice announces the Department's intention to request an extension for a currently approved information collection in support of the Dairy Tariff-rate Import Quota Licensing program.
Comments should be submitted no later than October 3, 2016 to be assured of consideration.
We invite you to submit comments as requested in this document. In your comment, include the Regulation Identifier Number (RIN) and volume, date, and page number of this issue of the
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Comments will be available for inspection online at
Persons with disabilities who require an alternative means for communication of information (Braille, large print, audiotape, etc.) should contact USDA's Target Center at (202) 720-2600 (voice and TDD).
Bettyann Gonzales, Dairy Import Specialist, STOP 1021, U.S. Department of Agriculture, Foreign Agricultural Service, 1400 Independence Avenue SW., Washington, DC 20250-1021; or by telephone (202) 720-1344; or by email:
Each quota year, all applicants must submit form FAS 923 (rev. 7-96). This form, available online, requires applicants to: (1) Certify they are an importer, manufacturer or exporter of certain dairy products; (2) certify they meet the eligibility requirements of § 6.23 of the Regulation; and (3) submit documentation required by § 6.23 and § 6.24 as proof of eligibility for import licenses. Applicants for non-historical licenses must also submit form FAS 923-A (rev. 7-96) (cheese) and/or FAS 923-B (rev. 7-96) (non-cheese dairy products). This form requires applicants to request licenses in descending order of preference for specific products and countries listed on the form.
After licenses are issued, § 6.26 requires licensees to surrender by October 1 on form FAS 924-A, License Surrender Form, any license amount that a licensee does not intend to enter that year. These amounts are reallocated, to the extent practicable, to existing licensees for the remainder of that year based on requests submitted on form FAS 924-B, Application for Additional License Amounts. Forms 924A and 924B require the licensee to complete a table listing the surrendered amount by license number, or listing the additional amounts requested by dairy article and supplying country in descending order of preference.
The estimated total annual burden of 436 hours in the Office of Management and Budget (OMB) inventory for the currently approved information collection will remain at 436 hours. The public reporting burden for this collection of currently approved forms FAS 923, FAS 923-A and 923-B (one form) (rev. 7-96) is estimated to average
All responses to this notice will be summarized and included in the request for OMB approval. All comments also will become a matter of public record.
FAS is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies, in general, to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. Electronic submission of the information collection was implemented on September 2009 in compliance with the GPEA.
Forest Service, USDA.
Notice of meeting.
The Ketchikan Resource Advisory Committee (RAC) will meet in Ketchikan, Alaska. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following Web site:
The meeting will be held on August 17, 2016, at 5:00 p.m.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at the Ketchikan Misty Fiords Ranger District, 3031 Tongass Avenue, Ketchikan, Alaska. A conference line is set up for those who would like to listen in by telephone. For the conference call number, please contact the person listed under
Written comments may be submitted as described under
Diane L. Olson, RAC Coordinator, by phone at 907-228-4105 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to:
1. Update members on past RAC projects, and
2. Propose new RAC projects.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by August 12, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Diane L. Olson, RAC Coordinator, Ketchikan Misty Fiords Ranger District, 3031 Tongass Avenue, Ketchikan, Alaska 99901; by email to
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Beaverhead-Deerlodge National Forest will prepare a Supplemental Environmental Impact Statement (SEIS) to the 2009 Beaverhead-Deerlodge National Forest Revised Land and Resource Management Plan (Forest Plan) environmental analysis in response to a June 14, 2016 Order from the U.S. District Court for the District of Montana. The Court directed the Forest Service to issue a supplemental EIS for the 2009 Revised Forest Plan that evaluates the potential environmental consequences of the 2002 and the 2008 MOUs. The MOUs were entered into by and between Grazing Permittees, the
Under 40 CFR 1502.9(c)(4), there is no formal scoping period for this proposed action. The Draft SEIS is expected to be published in October, 2016, which will then begin, in accordance with 36 CFR 219.16(a)(2), a 90-day public comment period on the Draft SEIS.
Jan Bowey, Beaverhead-Deerlodge National Forest, 420 Barrett Street, Dillon, MT 59725 (406) 683-3900.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
Forest Service, USDA.
Notice of meeting.
The Forest Resource Coordinating Committee (Committee) will meet via teleconference. The Committee is established consistent with the Federal Advisory Committee Act of 1972 (FACA) (5 U.S.C. App. II), and the Food, Conservation, and Energy Act of 2008 (the Act) (Pub. L. 110-246). Committee information can be found at the following Web site at
The teleconference will be held on September 28, 2016, from 12:00 p.m. to 1:30 p.m., Eastern Daylight Time (EDT).
All meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under
The meeting will be held via teleconference. For anyone who would like to attend the teleconference, please visit the Web site listed in the
Written comments may be submitted as described under
Scott Stewart, Designated Federal Officer, Cooperative Forestry staff, 202-205-1618.
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to:
1. Give recap following meeting with Undersecretary Robert Bonnie,
2. Plan agenda/logistics for November in-person meeting, and
3. Deliver educational presentation.
The teleconference is open to the public. However, the public is strongly encouraged to RSVP prior to the teleconference to ensure all related documents are shared with public meeting participants. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should submit a request in writing 10 days before the planned meeting to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. Written comments and time requests for oral comments must be sent to Scott Stewart, 1400 Independence Avenue SW., Mailstop 1123, Washington, DC 20250; or by email to
Forest Service, USDA.
Notice of objection filing period.
James Peña, the Regional Forester for the Pacific Northwest Region, has prepared a Final Environmental Impact Statement (FEIS) and draft Record of Decision (ROD) for the establishment of two Research Natural Areas (RNA) as part of the Lower Joseph Creek Restoration Project. The draft ROD authorizes establishment of both the Horse Pasture Ridge and Haystack Rock RNAs.
The FEIS and draft ROD are available on the forest's Web site at
Any objection must be submitted to Glen Casamassa, Associate Deputy Chief, who is the Objection Reviewing Officer, at one of the addresses listed in the
The objection process provides an opportunity for members of the public who have participated in the planning process for the forest plan amendment to have any unresolved concerns reviewed by the Forest Service prior to a final decision by the Responsible
All objections are open to public inspection and will be posted to the Forest Service Web site (
The objection filing period began upon publication of the notice in the newspaper of record (publication occurred on July 15, 2016 in the
Objections must be submitted to one of the addresses below:
1.
2.
3.
Darcy Weseman, Plan Amendment Project Manager, 72510 Coyote Rd. Pendleton, OR 97801, (541) 278-3755, or
The office business hours for those submitting hand-delivered objections are 8:00 a.m. to 5:00 p.m. (Eastern Standard Time), Monday through Friday, except Federal holidays. Electronic objections must be submitted in a commonly used format such as an email message, plain text (.txt), rich text format (.rtf), or Microsoft Word (.doc or .docx). For electronically mailed objections, the sender should normally receive an automated electronic acknowledgment from the agency as confirmation of receipt. If the sender does not receive an automated acknowledgment of the receipt of the objection, it is the sender's responsibility to ensure timely receipt by other means. The regulations prohibit extending the length of the objection filing period.
Any objection must include the following (30 CFR 219.54(c)):
1. The objector's name and address, telephone number or email address if available. Include the identification of the lead objector, when multiple names are listed on an objection.
2. Signature or other verification of authorship upon request (a scanned signature is allowed for electronic mail);
3. The title of the plan amendment, and the name and title of the Responsible Official;
4. A description of the issues and/or parts of the plan amendment to which the objection applies;
5. A brief statement explaining the objection and suggesting how the draft plan amendment decision may be improved. If the objector believes the plan amendment is inconsistent with law, regulation, or policy, the reasons should be included;
6. A statement that shows the link between the objector's prior substantive formal comments and the content of the objection, unless the objection concerns an issue that arose after the opportunities for formal comment.
Attach documents referenced in the objection except as noted at 36 CFR 219.54(b). The objector is responsible for ensuring the timely filing of written objections. Timeliness will be determined as indicated in 36 CFR 219.56(c).
The Reviewing Officer will provide written acknowledgement of receipt of the objection, if requested by the objector.
Forest Service, USDA.
Notice of meeting.
The White Pine-Nye Resource Advisory Committee (RAC) will meet in Eureka, Nevada. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with title II of the Act. RAC information can be found at the following Web site:
The meeting will be held on August 23, 2016, at 10:00 a.m.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at the Eureka County Annex, Conference Room, 701 South Main, Eureka, Nevada.
Written comments may be submitted as described under
Linda Bernardi, RAC Coordinator, by phone at 775-482-6286 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to review and and make recommendations with regards to proposed projects.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by August 15, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Linda Bernardi, RAC Coordinator, Tonopah Ranger District, P.O. Box 3940, Tonopah, Nevada 89049; by email to
All reasonable accommodation requests are managed on a case by case basis.
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA) that Maine Advisory Committee orientation and planning meeting of the Maine Advisory Committee to the Commission will convene at 1:30 p.m. (EDT) on Tuesday, August 16, 2016, at Lewiston City Hall, 27 Pine St., Lewiston, ME 04240. The purpose of the orientation meeting is to inform the newly appointed Committee members about the rules of operation of federal advisory committees and to select additional officers, as determined by the Committee. The purpose of the planning meeting is to discuss potential topics that the Committee may wish to study.
Persons who plan to attend the meeting and who require other accommodations, please contact Evelyn Bohor at
Members of the public are invited to submit written comments; the comments must be received in the regional office by Friday, September 16, 2016. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376-7548, or emailed to Evelyn Bohor at
The activities of this advisory committee, including records and documents discussed during the meeting, will be available for public viewing, as they become available at:
Tuesday, August 16, 2016, at 1:30 p.m. (EDT).
27 Pine St., Lewiston, ME 04240
Ivy L. Davis at
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The data from the survey are primarily intended as general purpose statistics. BEA's publications make the data available to answer any number of research and policy questions related to U.S. direct investment abroad.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to OIRA
International Trade Administration, U.S. Department of Commerce.
Notice of an opportunity to apply for membership on the Civil Nuclear Trade Advisory Committee.
The Department of Commerce (the Department) is seeking applications for membership on the Civil Nuclear Trade Advisory Committee (CINTAC or “Committee”). The purpose of the CINTAC is to provide advice to the Secretary of Commerce regarding the development and administration of programs to expand U.S. exports of civil nuclear goods and services in accordance with applicable U.S. laws and regulations, which will be used by the Department in its role as a member of the Civil Nuclear Trade Working Group of the Trade Promotion Coordinating Committee and of the TeamUSA interagency group to promote U.S. civil nuclear trade.
All applications for immediate consideration for appointment must be received by the Office of Energy & Environmental Industries by 5:00 p.m. Eastern Daylight Time (EDT) on September 2, 2016. After that date, ITA will continue to accept applications under this notice for a period of up to two years from the deadline to fill any vacancies that may arise.
Please submit applications in pdf or MS Word format via email to
Jonathan Chesebro, Office of Energy and Environmental Industries, Room 4053, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; phone 202-482-1297 or email
The CINTAC was established on September 17, 2008, pursuant to the Department of Commerce authority under 15 U.S.C. 1512 and the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. App. The CINTAC functions solely as an advisory committee in accordance with the provisions of FACA. As noted in the
(1) Matters concerning trade policy development and negotiations relating to U.S. civil nuclear exports;
(2) The effect of U.S. Government policies, regulations, programs, and foreign government policies and practices on the export of U.S. civil nuclear goods and services;
(3) The competitiveness of U.S. industry and its ability to compete for civil nuclear products and services opportunities in international markets, including specific problems in exporting, and provide specific recommendations regarding U.S. Government and public/private actions to assist civil nuclear companies in expanding their exports;
(4) The identification of priority civil nuclear products and services markets with the potential for high immediate returns for U.S. exports, as well as emerging markets with a longer-term potential for U.S. exports;
(5) Strategies to increase private sector awareness and effective use of U.S. Government export promotion programs, and recommendations on how U.S. Government programs may be more efficiently designed and coordinated;
(6) The development of complementary industry and trade association export promotion programs, including ways for greater and more effective coordination of U.S. Government efforts with private sector organizations' civil nuclear industry export promotion efforts; and
(7) The development of U.S. Government programs to encourage producers of civil nuclear products and services to enter new foreign markets, in connection with which CINTAC may advise on how to gather, disseminate, and promote awareness of information on civil nuclear exports and related trade issues.
CINTAC shall consist of approximately 40 members appointed by the Secretary, in accordance with applicable Department of Commerce guidance and based on their ability to carry out the objectives of the Committee. Members shall represent U.S. entities involved in the export of civil nuclear products and services and reflect the diversity of this sector, including in terms of entities' size and geographic location. The Committee shall also represent the diversity of company or organizational roles in the development of civil nuclear energy projects, including, for example, U.S. civil nuclear manufacturing and services companies, U.S. utilities, U.S. trade associations, and other U.S. organizations in the U.S. civil nuclear sector. The Secretary shall appoint to the Committee at least one individual representing each of the following:
a. Civil nuclear manufacturing and services companies;
b. small businesses;
c. utilities;
d. trade associations in the civil nuclear sector;
e. research institutions and universities; and
f. private sector organizations involved in strengthening the export competitiveness of U.S. civil nuclear products and services.
Members shall serve in a representative capacity, expressing the views and interests of a U.S. entity, as well as its particular subsector; they are, therefore, not Special Government Employees. Each member of the Committee must be a U.S. citizen and must not be registered as a foreign agent under the Foreign Agents Registration Act. No member may represent a U.S. entity that is majority owned or controlled by a foreign government entity (or foreign government entities). The Secretary of Commerce invites applications for the CINTAC, consistent with the above membership requirements. To be considered for membership, submit the following information (2 pages maximum) by 5:00 p.m. EDT on August 3, 2016 to the email or mailing address listed in the
(1) Name;
(2) Title;
(3) Work phone, fax, and, email address;
(4) Name of entity to be represented and address including Web site address;
(5) Short biography of nominee including credentials;
(6) Brief description of the entity and its business activities, size (number of
(7) An affirmative statement that the applicant and entity to be represented meet all eligibility criteria, specifically addressing that the applicant:
(a) Is a U.S. citizen; and
(b) Is not required to register as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.
Please do not send organization brochures or any other information.
All applications should be submitted in pdf or MS Word format via email to
International Trade Administration, U.S. Department of Commerce
Notice of an opportunity for travel and tourism industry leaders to apply for membership on the Board of Directors of the Corporation for Travel Promotion.
The Department of Commerce is currently seeking applications from travel and tourism leaders from specific industries for membership on the Board of Directors (Board) of the Corporation for Travel Promotion (dba Brand USA). The purpose of the Board is to guide the Corporation for Travel Promotion on matters relating to the promotion of the United States as a travel destination and communication of travel facilitation issues, among other tasks.
All applications must be received by the National Travel and Tourism Office by close of business on September 23, 2016.
Electronic applications may be sent to:
Julie Heizer, Deputy Director, Industry Relations, National Travel and Tourism Office, Mail Stop 10003, 1401 Constitution Avenue NW., Washington, DC 20230. Telephone: 202.482.4904. Email:
The Corporation (doing business as Brand USA) is governed by a Board of Directors, consisting of 11 members with knowledge of international travel promotion or marketing, broadly representing various regions of the United States. The TPA directs the Secretary of Commerce (after consultation with the Secretary of Homeland Security and the Secretary of State) to appoint the Board of Directors for the Corporation.
At this time, the Department will be selecting four individuals with the appropriate expertise and experience from specific sectors of the travel and tourism industry to serve on the Board as follows:
(A) 1 shall have appropriate expertise and experience in the attractions or recreation sector;
(B) 1 shall have appropriate expertise and experience in immigration policy/law;
(C) 1 shall have appropriate expertise and experience in land or sea passenger transportation; and
(C) 1 shall have appropriate expertise and experience as an official in the passenger air transportation sector.
To be eligible for Board membership, individuals must have international travel and tourism marketing experience, be a current or former chief executive officer, chief financial officer, or chief marketing officer or have held an equivalent management position. Additional consideration will be given to individuals who have experience working in U.S. multinational entities with marketing budgets, and/or who are audit committee financial experts as defined by the Securities and Exchange Commission (in accordance with section 407 of Pub. L. 107-204 [15 U.S.C. 7265]). Individuals must be U.S. citizens, and in addition, cannot be federally registered lobbyists or registered as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.
Those selected for the Board must be able to meet the time and effort commitments of the Board.
Board members serve at the discretion of the Secretary of Commerce (who may remove any member of the Board for good cause). The terms of office of each member of the Board appointed by the Secretary shall be three (3) years. Board members can serve a maximum of two consecutive full three-year terms. Board members are not considered Federal government employees by virtue of their service as a member of the Board and will receive no compensation from the Federal government for their participation in Board activities. Members participating in Board meetings and events may be paid actual travel expenses and per diem when away from their usual places of residence by the Corporation.
Individuals who want to be considered for appointment to the Board should submit:
1. Name, title, and personal resume of the individual requesting consideration, including address, email address and phone number; and
2. A brief statement of why the person should be considered for appointment to the Board. This statement should also address the individual's relevant international travel and tourism marketing experience and indicate clearly the sector or sectors enumerated above in which the individual has the requisite expertise and experience. Individuals who have the requisite expertise and experience in more than one sector can be appointed for only one of those sectors. Appointments of members to the Board will be made by the Secretary of Commerce.
3. An affirmative statement that the applicant is a U.S. citizen and further, is not required to register as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Effective August 3, 2016.
Paul Walker or Kenneth Hawkins, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-0413 or 202-482-6491, respectively.
On July 7, 2016, the Department of Commerce (“the Department”) published in the
This correction to the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Department) received a request from Zhejiang Jingli Bearing Technology Co. Ltd. (Zhejiang Jingli) for a new shipper review (NSR) of the antidumping duty order on tapered roller bearings and parts thereof, finished and unfinished (TRBs), from the People's Republic of China (PRC). We have determined that this request meets the statutory and regulatory requirements for initiation. The period of review (POR) for this NSR is June 1, 2015, through May 31, 2016.
Effective August 3, 2016.
Manuel Rey or Blaine Wiltse, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5518 or (202) 482-6345, respectively.
On June 15, 1987, the Department published in the
In its request, Zhejiang Jingli certified that it is a producer and exporter of TRBs from the PRC. Pursuant to section 751(a)(2)(B)(i)(I) of the Act and 19 CFR 351.214(b)(2)(i), Zhejiang Jingli also certified that it did not export TRBs to the United States during the period of investigation (POI).
In addition to the certifications described above, pursuant to 19 CFR 351.214(b)(2)(iv), Zhejiang Jingli submitted documentation establishing the following: (1) The date on which it first sold TRBs for export to the United States and the date on which the TRBs were first entered; (2) the volume of its first shipment; and (3) the date of its first sale to an unaffiliated customer in the United States.
The Department conducted a U.S. Customs and Border Protection (CBP) database query to confirm that Zhejiang Jingli's shipment of subject merchandise entered the United States for consumption and that liquidation of this entry had been properly suspended for antidumping duties. The Department also examined whether the CBP data confirmed that this entry was made during the POR. The information the Department examined was consistent with that provided by Zhejiang Jingli.
In accordance with 19 CFR 351.214(g)(1)(i)(A), the POR for an NSR initiated in the month immediately following the anniversary month will be the twelve-month period immediately preceding the anniversary month. Therefore, the POR is June 1, 2015, through May 31, 2016. Based on the information provided by Zhejiang Jingli, the subject merchandise upon which Zhejiang Jingli's NSR request is based entered the United States during this twelve-month POR.
Pursuant to section 751(a)(2)(B) of the Act, 19 CFR 351.214(b), 19 CFR 351.214(d)(1), and after reviewing the information on the record, the Department finds that the request from
On February 24, 2016, the President signed into law the “Trade Facilitation and Trade Enforcement Act of 2015,” H.R. 644, which made several amendments to section 751(a)(2)(B) of the Act. We will conduct this NSR in accordance with section 751(a)(2)(B) of the Act, as amended by the Trade Facilitation and Trade Enforcement Act of 2015.
The Department intends to issue the preliminary results of this NSR no later than 180 days from the date of initiation, and the final results within 90 days after the date on which the preliminary results are issued, pursuant to section 751(a)(2)(B)(iii) of the Act.
It is the Department's usual practice, in cases involving non-market economy countries, to require that a company seeking to establish eligibility for an antidumping duty rate separate from the country-wide rate provide evidence of
To assist in its analysis of the
Interested parties requiring access to proprietary information in this NSR should submit applications for disclosure under administrative protective order in accordance with 19 CFR 351.305 and 351.306. This initiation and notice are published in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214 and 351.221(c)(1)(i).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty (CVD) order on polyethylene terephthalate film, sheet and strip (PET film) from India for the period of review (POR) January 1, 2014, through December 31, 2014. We preliminarily determine that Jindal Poly Films Limited of India (Jindal) and SRF Limited (SRF) received countervailable subsidies during the POR.
Effective August 3, 2016.
Elfi Blum, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0197.
The Department initiated a review of nine companies in this segment of the proceeding.
For purposes of the order, the products covered are all gauges of raw, pretreated, or primed polyethylene terephthalate film, sheet and strip, whether extruded or coextruded. Excluded are metallized films and other finished films that have had at least one of their surfaces modified by the application of a performance-enhancing resinous or inorganic layer of more than 0.00001 inches thick. Imports of PET film are classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under item number 3920.62.00.90. HTSUS subheadings are provided for convenience and customs purposes. The written description of the scope of the order is dispositive.
The Department is conducting this review in accordance with section 751(a)(l)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we preliminarily determine that there is a subsidy,
The Preliminary Decision Memorandum is a public document and
We preliminarily determine the total estimated net countervailable subsidy rates for the period January 1, 2014, through December 31, 2014 to be:
The Department will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results.
Interested parties who wish to request a hearing must do so within 30 days of publication of these preliminary results by submitting a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, using Enforcement and Compliance's ACCESS system.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, the Department intends to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after publication of these preliminary results.
Upon issuance of the final results, the Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review. We intend to issue instructions to CBP 15 days after publication of the final results of review.
Pursuant to section 751(a)(2)(C) of the Act, the Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties, in the amounts shown above for each of the respective companies shown above, on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits at the most-recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.
These preliminary results of review are issued and published in accordance with sections 751(a)(l) and 777(i)(l) of the Act and 19 CFR 351.213 and 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Effective August 3, 2016.
Robert Galantucci at (202) 482-2923 or William Horn at (202) 482-2615, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On June 14, 2016, the Department of Commerce (the Department) initiated the countervailing duty (CVD) investigation of ammonium sulfate from the People's Republic of China.
Section 703(b)(1) of the Act, requires the Department to issue the preliminary determination in a CVD investigation within 65 days after the date on which the Department initiated the investigation. However, in accordance with 19 CFR 351.205(e), if the petitioner makes a timely request for an extension, section 703(c)(1)(A) of the Act allows the Department to postpone the preliminary determination until no later than 130 days after the date on which the Department initiated the
On July 22, 2016, PCI Nitrogen, LLC (Petitioner) submitted a timely request pursuant to section 703(c)(1)(A) of the Act and 19 CFR 351.205(e) to postpone the preliminary determination due to the number and complex nature of subsidy programs under investigation.
In accordance with 19 CFR 351.205(e), Petitioner has stated the reason for requesting a postponement of the preliminary determination and the record does not present any compelling reasons to deny Petitioner's request. Therefore, the Department will extend the deadline for completion of the preliminary determination by 65 days (
This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f)(l).
International Trade Administration, Department of Commerce.
Notice.
In March 2007, the Governments of the United States and Brazil established the U.S.-Brazil CEO Forum (Forum). Through a
U.S. Department of Commerce, 1401 Constitution Avenue NW., Room 30013, Washington, DC 20230.
Raquel Silva, Office of Latin America and the Caribbean, U.S. Department of Commerce,
The Secretary of Commerce and the Director of the National Economic Council and Assistant to the President for Economic Policy, together with the Brazilian Minister of Casa Civil and the Brazilian Minister of Industry, Foreign Trade and Services co-chair the U.S.-Brazil CEO Forum, pursuant to the Terms of Reference signed in March 2007 by the U.S. and Brazilian governments, as amended, which set forth the objectives and structure of the Forum. The Terms of Reference may be viewed at:
As stated in the amended Terms of Reference, “members [of the Forum] normally are to serve three-year terms but may be reappointed.” The current U.S. Section Member appointments expire on August 13, 2016. The postponement of the most recent scheduled meeting of the United States-Brazil CEO Forum has resulted in a need for additional time for the current U.S. Section Members to finish on-going work with the Brazil Section Members to finalize and present Committee joint recommendations to the Government co-chairs. For that reason, the Secretary of Commerce and the Director of the National Economic Council and Assistant to the President for Economic Policy have decided to extend the current U.S. Section Member appointments through June 30, 2017.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permits.
Notice is hereby given that Harold Brundage (File No. 19331), Environmental Research and Consulting, Inc., 126 Bancroft Rd; Kennett Square, PA 19348, and Jason Kahn (File No. 19642), NOAA Fisheries, 1315 East-West Highway, Silver Spring, MD 20910, have been issued permits to take shortnose sturgeon (
The permits and related documents are available for review upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.
Malcolm Mohead or Erin Markin, (301) 427-8401.
On November 27, 2015, notice was published in the
Issuance of these permits, as required by the ESA, is based on a finding that such permits (1) are applied for in good faith, (2) will not operate to the disadvantage of such endangered or threatened species, and (3) are consistent with the purposes and policies set forth in section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its
This meeting will be held on Thursday, August 18, 2016, at 9 a.m.
The meeting will be held at the Holiday Inn, 31 Hampshire Street, Mansfield, MA 02048; Phone: (508) 339-2200; Fax: (508) 339-1040.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The committee will discuss two ongoing habitat-related management actions. Related to the Omnibus Deep-Sea Coral Amendment, the committee will review preliminary economic and biological impacts of deep-sea coral zone designations, and discuss whether the amendment should include alternatives to restrict
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at 978-465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Heather E. Liwanag, Ph.D. (California Polytechnic State University, San Luis Obispo, CA 93407-0401), has applied in due form for a permit to conduct research on Weddell seals (
Written, telefaxed, or email comments must be received on or before September 2, 2016.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Sara Young or Amy Sloan, (301) 427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The applicant proposes to study the thermoregulatory strategies (insulation, thermogenic mechanisms) by which Weddell seal pups maintain euthermia in air and in water and examine the development of diving capability (oxygen stores) as the animals prepare for independent foraging. This study will take place near McMurdo Station in Antarctica. In each field season (two field seasons total), nine pups (18 total) will be handled at five time points between two days and eight weeks of age. Protocols not requiring sedation (mass, morphometrics, core and surface temperatures, metabolic rates) will be conducted on all nine individuals at all five time points under manual restraint. Protocols requiring anesthesia (body composition, biopsies, and blood volume analysis) will be sampled twice for each animal: Once between two days and four weeks of age, and again at six weeks; one additional anesthesia procedure will be conducted for a single blood draw at seven or eight weeks. An additional 12 pups will be handled for vibrissae sampling annually, and a second cohort of nursing pups may be handled annually if study animals are not relocated at any of the 5 time points for resampling. The applicant is also proposing to take up to 700 animals for flipper tag reading, thermal imaging, and incidental harassment due to work with conspecifics. Up to six pup mortalities are requested annually, not to exceed ten over the two field seasons. The permit would be valid for three years.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council will hold a Post Council Meeting Briefing for the public via Webinar.
The meeting will be held from 6 p.m. to 9 p.m. on Wednesday, August 24, 2016.
The meeting will take place via Webinar at:
Emily Muehlstein, Fisheries Outreach Specialist, Gulf of Mexico Fishery Management Council;
You may register for the Post August Council Meeting Briefing Webinar at:
After registering, you will receive a confirmation email containing information about joining the Webinar.
16 U.S.C. 1801
The Committee for the Implementation of Textile Agreements.
Determination to add a product in unrestricted quantities to Annex 3.25 of the CAFTA-DR Agreement.
August 3, 2016.
The Committee for the Implementation of Textile Agreements (“CITA”) has determined that certain two-ply polyester yarn, as specified below, is not available in commercial quantities in a timely manner in the CAFTA-DR countries. The product will be added to the list in Annex 3.25 of the CAFTA-DR Agreement in unrestricted quantities.
Richard Stetson, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-3400.
On June 1, 2016, the Chairman of CITA received a Request for a Commercial Availability Determination (“Request”) from Sandler, Travis & Rosenberg, P.A. on behalf of Polartec LLC. (“Polartec”) for a certain two-ply polyester yarn, as specified below.
On June 3, 2016, in accordance with CITA's procedures, CITA notified interested parties of the Request, which was posted on the dedicated Web site for DR-CAFTA Commercial Availability proceedings. In its notification, CITA advised that any Response with an Offer to Supply (“Response”) to the Request must be submitted by June 15, 2016, and any rebuttal comments to a Response (“Rebuttal”) must be submitted by June 21, 2016.
On June 15, 2016, the Chairman received two Responses: one from CS Central America S.A. de C.V (“CSCA”), and one from Unifi Manufacturing, Inc (“Unifi”). On June 24, 2016, Unifi withdrew its Response. On June 28, 2016, Polartec submitted its Rebuttal.
In accordance with Section 203(o)(4) of the DR-CAFTA Implementation Act, Article 3.25 of the DR-CAFTA, and section 8(c)(4) of CITA's procedures, because there was insufficient information to make a determination within 30 U.S. business days, CITA extended the deadline to make its determinations by 14 U.S. business days, and called for a public meeting on July 8, 2016, to collect additional information from representatives of Polartec and CSCA and provide the interested entities with an opportunity to submit additional evidence to support their claims regarding the capability of CSCA to supply the subject yarn. At CITA's request, additional information was submitted by CSCA for the record on July 12 and July 13, 2016.
Section 8 of CITA's procedures provide that after receiving a Request, a determination will be made as to whether the subject product is available in commercial quantities in a timely manner in the CAFTA-DR countries. In the instant case, CSCA provided several samples to Polartec, which both CSCA and Polartec had tested to determine if the samples met the required specifications. Because the test results provided for the record were inconclusive, CITA looked to other information in the record to determine whether CSCA had demonstrated it had the capability of supplying the subject product as specified.
Section 6(b)(3)(iv) of CITA's procedures state that “regardless of whether a sample is provided, a respondent must demonstrate its ability to produce the subject product by providing sufficient relevant information regarding their production capability.” The record clearly indicates that, while CSCA provided some information regarding their current production and development timeline, CSCA had not provided any information regarding its production process, specifically with respect to: (1) How its experience with its current yarn production imparted the necessary expertise to make yarns with the specified physical properties and performance characteristics; or (2) what kind of modifications CSCA would have to make to its current yarn production processes to produce the subject yarn. CITA finds that, given the differences between the yarns CSCA currently produces and the specifications of the subject yarn, this information was necessary to adequately demonstrate CSCA's capability to supply the subject yarn, which requires significantly different physical properties and performance characteristics. CSCA had several opportunities to present CITA with the information required under its procedures, but failed to do so in the course of due diligence, in its Response, or in the public meeting. Therefore, because CSCA did not provide sufficient relevant information regarding its production capability as required under CITA's procedures, CSCA did not demonstrate its capability to produce the subject yarn in commercial quantities in a timely manner. Therefore, in accordance with section 203(o) of the CAFTA-DR Implementation Act, and Section 8 of CITA's procedures, as no interested entity has substantiated its ability to supply the subject product in commercial quantities in a timely manner, CITA has determined to add the specified fabric to the list in Annex 3.25 of the CAFTA-DR Agreement.
The subject product has been added to the list in Annex 3.25 of the CAFTA-DR Agreement in unrestricted quantities. A revised list has been posted on the dedicated Web site for CAFTA-DR Commercial Availability proceedings.
The yarn size designations describe a range of yarn specifications for yarn before knitting, dyeing and finishing of the fabric. They are intended as specifications to be followed by the mill in sourcing yarn used to produce fabric. Dyeing, finishing, and knitting can alter the characteristics of the yarn as it appears in the finished fabric. This specification therefore includes yarns appearing in the finished fabric as finer or coarser than the designated yarn sizes provided that the variation occurs after processing of the greige yarn and production of the fabric. The specifications for the yarn apply to the yarn itself prior to cutting, sewing and finishing of a finished garment. Such processing may alter the measurements.
Department of the Army, DoD.
Notice of availability.
The Department of the Army announces the availability of the Record of Decision (ROD) for implementation of activities and operations at Yuma Proving Ground (YPG), AZ. Pursuant to the National Environmental Policy Act (NEPA), the Department of the Army prepared a Programmatic Environmental Impact Statement (PEIS) that evaluated the potential environmental and socioeconomic effects of proposed construction and demolition of facilities and infrastructure, and proposed changes to current types and levels of testing and training at YPG. The Army selected the Preferred Alternative identified in the Final PEIS. The ROD explains that the Army will proceed with its Preferred Alternative to implement 296 proposed activities, including construction and demolition of facilities and infrastructure, changes to current types and levels of testing and training, and activities conducted under private industry partnerships.
For questions concerning the ROD, please contact Mr. Sergio Obregon, U.S. Army Garrison Yuma Proving Ground, National Environmental Policy Act Coordinator, IMYM-PWE, Yuma, AZ 85365-9498. Questions may be mailed to that address or emailed to
Mr. Chuck Wullenjohn, Yuma Proving Ground Public Affairs Office, at (928) 328-6189 Monday through Thursday from 6:30 a.m. to 5:00 p.m., Mountain Standard Time.
Yuma Proving Ground is a major range and test facility base, responsible for testing technology, equipment, and weapon systems. The purpose of the selected action is to provide upgraded facilities for testing military ground and aerial vehicle systems, weapons, ammunitions, sensors, and guidance systems for performance and reliability, and to provide realistic training for military units. The Final PEIS, published in April 2015, examined the potential environmental and socioeconomic impacts associated with implementing new activities and operations at YPG. Activities addressed in the Final PEIS included construction and demolition of facilities and infrastructure, and changes to current types and levels of testing and training. It provided thorough analysis under NEPA for the short-term, well-defined projects and allows less well-defined projects to be implemented following a focused, site-specific NEPA analysis that would tier from the PEIS.
The ROD incorporates analysis contained in the Final PEIS for activities and operations at YPG, as well as comments provided during formal comment and review periods, to include the Final PEIS waiting period.
The Army considered reasonable alternatives for components of the activities in the Proposed Action and has selected an alternative that will have a lower impact for some projects than would the original Proposed Action. These include reduced areas and selection of a smaller area for some of the proposed activities to avoid or minimize potential impacts.
Implementation of this decision is expected to result in direct, indirect, and cumulative impacts to environmental resources. To minimize the potential adverse impacts from implementation of the selected alternative, the Army will mitigate these effects through a variety of mitigation and control measures, as described in the ROD. All practicable means to avoid or minimize environmental harm from the selected alternative have been adopted. In making this decision, the Army is aware that implementation of the selected alternative could result in potentially significant impacts to Fire Management, Soils, and Vegetation, even after implementation of mitigation measures. The selected alternative represents a balance between mission requirements and stewardship of the environment.
The full text of the ROD and the Final PEIS are available at the following Web site:
Office of the Secretary, DoD.
Notice.
The National Museum of Health and Medicine (NMHM), in consultation with appropriate descendant and memorial organizations, shall release the human remains of an unidentified child's skull, aged 6-10 years, for burial alongside other victim remains of the 1857 Mountain Meadows Massacre, interred by the U.S. Army in 1859. Next-of-kin, or representatives of any organizations who believe they have a legitimate claim to the remains of victims of the 1857 Mountain Meadows Massacre, who wish to assert a legitimate claim for these remains or otherwise direct their disposition should submit a written request to the NMHM. If no additional claimants come forward, transfer of possession of the human remains to the aforementioned descendant and memorial organizations stated in this notice may proceed.
Next-of-kin or representatives of any relevant organizations that wish to submit a legitimate claim for these remains or otherwise direct disposition should submit a written request, with information in support of their claim, to the NMHM at the address stated in the
Brian Spatola, National Museum of Health and Medicine, 2460 Linden Lane #2500, Silver Spring, MD 20910. Telephone: 301-319-3353; Email:
Statutory Authority for the intended actions include: Public Law 103-337, div. A, title X, § 1067, Oct. 5, 1994, 108 Stat. 2851, as amended by Pub. L. 105-78, title VII, § 702, Nov. 13, 1997, 111 Stat. 1524 (reprinted in the notes to 10 U.S.C. 176) as statutory authority for the NMHM; and DoDD 5136.13, as the Director, Defense Health Agency's general authority over matters concerning the Museum as a component of the Defense Health Agency.
U.S. Department of Energy.
Notice and request for comments.
The Department of Energy (DOE) invites public comment on a proposed collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of DOE's responsibility to develop a regulation pursuant to section 934 of the Energy Independence and Security Act of 2007 (EISA) on implementing the Convention on Supplementary Compensation for Nuclear Damage (CSC), including whether the information shall have practical utility; (b) the accuracy of DOE's estimate of the burden of the proposed collection of information, including whether the information shall have practical utility; (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 regarding this proposed information collection must be received on or before October 3, 2016. If you anticipate difficulty in submitting comments within that period, contact the person listed in
Written comments may be submitted electronically by emailing them to:
Also, written comments should be addressed to Sophia Angelini, Attorney-Advisor, Office of General Counsel for Civilian Nuclear Programs, GC-72, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585.
Requests for additional information should be directed to Sophia Angelini, Attorney-Advisor, Office of General Counsel for Civilian Nuclear Programs, GC-72, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; telephone (202) 586-0319. Copies of the information collection instrument and instructions can be viewed at
On December 17, 2014, DOE published a notice of proposed rulemaking (NOPR) in the
This information collection request contains: (1) OMB Number: New; (2) Information Collection Request Title: Data Collection for Convention on Supplementary Compensation for Nuclear Damage Contingent Cost Allocation; (3) Type of Request: New; (4) Purpose: This information collection request is necessary for DOE to develop its regulation containing the risk-informed formula required by section 934(e) of EISA for calculating the deferred payment of a nuclear supplier; (5) Annual Estimated Number of Respondents: 150; (6) Annual Estimated Number of Total Responses: 150; (7) Annual Estimated Number of Burden Hours: 5 annual burden hours per response, 750 total annual burden hours; and (8) Annual Estimated Reporting and Recordkeeping Cost Burden: $1,500 annual cost per Respondent, $225,000 annual cost burden for all Respondents.
Section 934(f) of the Energy Independence and Security Act of 2007.
Notice document 2016-17896 was originally published on page
Federal Energy Regulatory Commission, Department of Energy.
Comment request.
In compliance with the requirements of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(a)(1)(D), the Federal Energy Regulatory Commission (Commission or FERC) is submitting its information collection FERC-539 (Gas Pipeline Certificates: Import & Export Related Applications) to the Office of Management and Budget (OMB) for review of the information collection requirements. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission previously issued a Notice in the
Comments on the collection of information are due by August 29, 2016.
Comments filed with OMB, identified by the OMB Control No. 1902-0062, should be sent via email to the Office of Information and Regulatory Affairs:
A copy of the comments should also be sent to the Commission, in Docket No. IC16-8-000, by either of the following methods:
• eFiling at Commission's Web site:
• Mail/Hand Delivery/Courier: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.
Ellen Brown may be reached by email at
The regulatory functions of Section 3 are shared by the Commission and the Secretary of Energy, Department of Energy (DOE). The Commission has the authority to approve or disapprove the construction and operation of particular facilities, the site at which such facilities shall be located, and, with respect to natural gas that involves the construction of new domestic facilities, the place of entry for imports or exit for exports. DOE approves the importation or exportation of the natural gas commodity.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. Deadline for filing comments, recommendations, terms and conditions, and prescriptions: 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice.
The Commission strongly encourages electronic filing. Please file comments, recommendations, terms and conditions, and prescriptions using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted and is now ready for environmental analysis.
l. The proposed Pine Creek Tunnel Hydroelectric Project would utilize the groundwater discharge of Pine Creek Mine and consist of: (1) The existing Pine Creek Mine site, mine entrance tunnels, mine shafts, and concrete plug; (2) an existing 30-foot-long steel pipe that runs through the concrete plug, to be used as a proposed penstock; (3) a proposed Pelton turbine generating unit located in the mine tunnel with a total installed capacity of 1.5 megawatts; (4) a proposed underground power line that would run approximately 2,500 feet from the generating unit to the mine portal; and (5) another proposed 60-foot-long transmission line from the mine portal to an existing substation on the mine site. The proposed project would have an average annual generation of 5.6 gigawatt-hours.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Register online at
n. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, and .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
All filings must (1) bear in all capital letters the title “PROTEST,” “MOTION TO INTERVENE,” “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “PRELIMINARY TERMS AND CONDITIONS,” or “PRELIMINARY FISHWAY PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b), and 385.2010.
o. Procedural Schedule: The application will be processed according to the following revised Hydro Licensing Schedule. Revisions to the schedule may be made as appropriate.
p. A license applicant must file no later than 60 days following the date of issuance of this notice: (1) A copy of the water quality certification; (2) a copy of the request for certification, including
q. Any qualified applicant desiring to file a competing application must submit to the Commission, on or before the specified intervention deadline date, a competing development application, or a notice of intent to file such an application. Submission of a timely notice of intent allows an interested person to file the competing development application no later than 120 days after the specified intervention deadline date. Applications for preliminary permits will not be accepted in response to this notice.
A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit a development application. A notice of intent must be served on the applicant(s) named in this public notice.
1. By letter filed July 20, 2016, New England Hydropower Company, LLC informed the Commission that the exemption from licensing for the Hanover Pond Dam Hydroelectric Project No. 14550, originally issued May 19, 2016
2. Hanover Pond Hydro, LLC is now the exemptee of the Hanover Pond Dam Hydroelectric Project, No. 14550. All correspondence should be forwarded to: Mr. Michael C. Kerr, CEO, Hanover Pond Hydro, LLC, 100 Cummings Center Drive, Suite 428N, Beverly, MA 01915.
On July 22, 2016, the Metropolitan 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 Barkhamsted Transmission Hydro No. 1 Project would have an installed capacity of 250 kilowatts (kW) and would be located at a 48-inch-diameter gravity pressure raw water supply pipe. The project would be located near the City of New Hartford in Lichfield County, Connecticut.
A qualifying conduit hydropower facility is one that is determined or deemed to meet all of the criteria shown in the table below.
The 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
On July 26, 2016, Elephant Butte 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 Drop 8 Facility would have an installed capacity of 40 kilowatts (kW), and would be located at the existing Drop 8 check structure of Elephant Butte Irrigation District's Westside Irrigation Canal. The project would be located near La Mesa in Doña Ana County, New Mexico.
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
Environmental Protection Agency (EPA).
Notice of final order on petitions to object to state operating permits.
The Environmental Protection Agency (EPA) Administrator signed an Order, dated July 15, 2016, denying petitions to object to Clean Air Act (CAA) title V operating permits issued by the Jefferson County Department of Health (JCDH) to ABC Coke for its facility located in Tarrant and Walter Coke for its facility located in North Birmingham, both in Jefferson County, Alabama. This Order constitutes a final action on the petitions submitted by Gasp (Petitioner) and received by EPA on October 3, 2014, and December 2, 2014, respectively.
Copies of the Order, the petitions, and all pertinent information relating thereto are on file at the following location: EPA Region 4; Air, Pesticides and Toxics Management Division; 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The Order is also available electronically at the following address:
Art Hofmeister, Air Permits Section, EPA Region 4, at (404) 562-9115 or
The CAA affords EPA a 45-day period to review and, as appropriate, the authority to object to operating permits proposed by state permitting authorities under title V of the CAA, 42 U.S.C. 7661-7661f. Section 505(b)(2) of the CAA and 40 CFR 70.8(d) authorize any person to petition the EPA Administrator to object to a title V operating permit within 60 days after the expiration of EPA's 45-day review period if EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or the grounds for the issues arose after this period. Pursuant to sections 307(b) and 505(b)(2) of the CAA, a petition for judicial review of those parts of the Order that deny issues in the petition may be filed in the United States Court of Appeals for the appropriate circuit within 60 days from the date this notice is published in the
Petitioners submitted petitions regarding the aforementioned ABC Coke and Walter Coke facilities, requesting that EPA object to the CAA title V operating permits (#4-07-0001-03 and 4-07-0355-03, respectively). Petitioner alleged that the permits were not consistent with the CAA because: (1) They lack the conditions necessary to assure compliance with the general prohibition against “air pollution”; (2) they contain conditions governing fugitive dust that are too vague or too restrictive; and (3) JCDH failed to provide Petitioner with sufficient emissions information to participate meaningfully in the permitting process with respect to Walter Coke.
On July 15, 2016, the Administrator issued an Order denying the petitions. The Order explains EPA's rationale for denying the petitions.
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 August 18, 2016.
A. Federal Reserve Bank of Minneapolis (Jacquelyn K. Brunmeier, Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:
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Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project:
Comments on this notice must be received by October 3, 2016.
Written comments should be submitted to: Doris Lefkowitz, Reports Clearance Officer, AHRQ, by email at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427-1477, or by email at
This study is being conducted by AHRQ through its contractor, RAND, pursuant to AHRQ's statutory authority to conduct and support research on health care and on systems for the delivery of such care, including activities with respect to the quality, effectiveness, efficiency, appropriateness and value of health care services and with respect to quality measurement and improvement. 42 U.S.C. 299a(a)(1) and (2).
The patient-centered medical home (PCMH) is a model for delivering primary care that is patient-centered, comprehensive, coordinated, accessible, and continuously improved through a systems-based approach to quality and safety.
As primary care practices across the United States seek National Committee for Quality Assurance (NCQA) recognition as patient-centered medical homes (PCMH), they can choose to administer the Consumer Assessment of Healthcare Providers and Systems (CAHPS®) Clinician and Group (CG-CAHPS) survey with or without the PCMH supplemental item set (AHRQ, 2010; Hays et al., 2014; Ng et al., 2016; Scholle et al., 2012). NCQA offers a special patient experience distinction to practices that opt to use the PCMH CAHPS items set in their CG-CAHPS survey tool. While over 11,000 practices, representing an estimated 15-18% of primary care physicians, are currently recognized for PCMH by NCQA (NCQA, 2015), fewer than 3% of them submit patient experience surveys to NCQA when applying for recognition under NCQA's PCMH recognition program.
Despite the rapid movement toward PCMH primary care transformation and the increasing use of PCMH CAHPS items, little is known about the ways in which practices are using these CAHPS data and the PCMH supplemental item information (about access, comprehensiveness, self-management, shared decision making, coordination of care, and information about care and appointments) to understand and improve their patients' experiences during PCMH transformation. The PCMH Items Demonstration Study will investigate:
• How practices across the U.S. use CAHPS and the PCMH item set during PCMH transformation,
• How practices assemble and select items for inclusion in their patient experience surveys (
• Primary care practice leaders' perspectives on NCQA PCMH Recognition and CAHPS Patient Experience Distinction,
• Effects of changes made during PCMH transformation on patient experiences reported on CAHPS surveys and any PCMH items, and
• Associations between PCMH transformation and patient experience scores.
To achieve the goals of this project the following data collections will be implemented:
(1) Office Manager Questions administered via phone about the participating practice's characteristics to describe the type of practices in the study and to understand how practice characteristics influence PCMH transformation and patient experience.
(2) Physician Interviews administered via phone with the lead PCMH clinical expert about the details, decisions and processes of PCMH transformation, NCQA PCMH Recognition and CAHPS Patient Experience Distinction and their use of patient experience data during the transformation process.
(3) PCMH-A Assessment Tool to be completed by the lead PCMH clinical expert (before or after the interview on the standardized form via fax or email) to collect validated metrics on the “PCMH-ness” of the practice.
(4) CAHPS Patient Experience Data Files, which are patient-level, de-identified CAHPS patient experience data covering the period of PCMH transformation for the participating practice. These data are collected independently of this study by the practice (or network) via its current vendor. We will work with the PCMH clinical expert, or a designated person who handles data, in each of the participating practices to submit these CAHPS data files securely to RAND to understand CAHPS patient experience trends and associations with PCMH implementation during the practice's PCMH journey.
Characterizing the use of CAHPS and PCMH items by primary care practices will provide important insight into the activities practices conduct during PCMH transformation to improve patient experience scores. This information may be useful in supporting practices that lag behind their peers, learning from practices with outstanding records of patient experience, and providing recommendations that may be used to refine the content of the CAHPS survey items.
Table 1 shows the estimated annualized burden and cost for the respondents' time to participate in this data collection. These burden estimates are based on tests of data collection conducted on nine or fewer entities. As indicated below, the annual total burden hours are estimated to be 179 hours. The annual total cost associated with the annual total burden hours is estimated to be $16,899.
The PCMH Items Demonstration Study will recruit 150 practices including the participating practices' office managers and one physician/lead PCMH clinical expert. We will recruit and administer the Office Manager Questions by phone to 150 office managers, recruit all sampled physicians by sending them a recruitment packet that includes a cover letter, an AHRQ endorsement letter and an information sheet, and then administer the Physician Interview protocol questions by phone to 150 physicians, and 150 physicians will self-administer the PCMH-A Assessment Tool.
We have calculated our burden estimate for Office Manager Questions asked during physician recruitment using an estimate of 3-5 questions a minute as the Office Manager Questions are closed-ended survey questions. The Office Manager Questions contains 17 questions and is estimated to require an average of 5 minutes; this estimate is supported by the information gathered during a pilot of these questions. For the Physician Interview, we have calculated the burden estimate to require an average of 40 minutes per interview. For the PCMH-A Assessment Tool, we calculated our burden using a conservative estimate of 4.5 items per minute. Prior work suggests that 3-5 items on an assessment tool can typically be completed per minute, depending on item complexity and respondent characteristics (Berry, 2009; Hays & Reeve, 2010). The PCMH-A Assessment tool contains 36 items and is estimated to require an average completion time of 8-10 minutes.
Participating practices will be asked to submit any available CAHPS Patient Experience data files (
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ health care research and health care information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) 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 upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of the draft guidance entitled “Medical X-Ray Imaging Devices Conformance With IEC Standards.” This draft guidance describes FDA's policy regarding the regulation of medical x-ray imaging equipment that are subject to requirements in the Federal Food, Drug, and Cosmetic Act (the FD&C Act) and FDA's regulations that apply to medical devices and electronic products. The draft guidance also provides recommendations to industry on how to comply with the applicable requirements. This draft guidance is not final nor is it in effect at this time.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by November 1, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
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• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
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• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
An electronic copy of the guidance document is available for download from the Internet. See the
Robert Sauer, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5628, Silver Spring, MD 20993-0002, 301-796-3580.
This draft guidance describes FDA's policy regarding the regulation of medical x-ray imaging equipment that are subject to requirements in the FD&C Act and FDA's regulations that apply to medical devices and electronic products. In the draft guidance, FDA is seeking to harmonize performance standards prescribed under section 534 of subchapter C (Electronic Product Radiation Control (EPRC)) of the FD&C Act (21 U.S.C. 360kk) with International Electrotechnical Commission (IEC) standards, where appropriate, to help to ensure streamlined regulatory review of submissions for these products. The draft guidance also provides recommendations to industry on how to comply with the applicable requirements. FDA believes industry conformance to certain IEC standards would provide the same level of or improved protection of the public health and safety from electronic radiation as certain EPRC regulatory standards. FDA also believes conformance to certain IEC standards would be sufficient to meet the 510(k) premarket notification requirement for certain devices. FDA review of related radiological health and safety data in premarket submissions, as opposed to EPRC product reports, would maintain or improve device safety while consolidating the information manufacturers submit to FDA.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Medical X-Ray Imaging Devices Conformance With IEC Standards.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Persons interested in obtaining a copy of the draft guidance may do so by downloading an electronic copy from the Internet. A search capability for all CDRH guidance documents is available at
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal Agencies must obtain approval
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The draft guidance describes FDA's policy regarding the regulation of medical x-ray imaging equipment that are subject to FDA's regulations that apply to medical devices and electronic products. FDA believes industry conformance to certain IEC standards would be sufficient to meet the 510(k) premarket notification requirement for certain of these devices. FDA review of related radiological health and safety data in premarket submissions, as opposed to EPRC product reports, would maintain or improve device safety while consolidating the information manufacturers submit to FDA. Currently, information regarding the IEC standards is submitted as part of the premarket notification (approved under OMB control number 0910-0120). Under the draft guidance, if finalized, respondents may choose to submit declarations of conformity with certain IEC standards—in either a 510(k) or if no 510(k) is submitted in an Abbreviated Report under 21 CFR 1002.12(e)—instead of submitting EPRC reports for certain devices in the circumstances described in the draft guidance.
Based on an analysis of recent submissions from Fiscal Year (FY) 2015, approximately 93 percent of manufacturers of Class II medical x-ray imaging devices, including CT, fluoroscopy, and stationary x-ray systems, claimed conformance to an applicable IEC standard. Accordingly, we believe that the majority of manufacturers of Class II medical x-ray imaging systems would choose to continue to submit declarations of conformity to these IEC standards and not submit EPRC product reports, supplemental reports, and annual reports under the guidance. The other 7 percent of manufacturers of Class II medical x-ray imaging devices and likely a subset of these 93 percent may choose to submit product reports, supplemental reports, and annual reports.
In FY 2015, there were 22 Class II product reports and 13 Class I product reports for x-ray imaging devices submitted to FDA. Therefore, we expect a reduction of 34 respondents to the estimated burden for the product reports, supplemental reports, and annual report information collections in table 1 of this document. Because 13 of these x-ray imaging devices are 510(k)-exempt, Class I devices, we would expect an increase of 13 respondents to the estimated burden for the information collection related to Abbreviated Reports in table 1 of this document (as these manufacturers would be submitting their declarations of conformity in these reports), which corresponds to an expected reduction of 13 respondents to the estimated burden for the product reports, supplemental reports, and annual reports information collections in table 1 of this document. This equals an overall reduction of 1,395 hours in OMB control number 0910-0025.
FDA estimates the burden of this collection of information as follows:
The draft guidance also refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by OMB under the PRA. The collections of information in 21 CFR part 807, subpart E have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 801 have been approved under OMB control number 0910-0485; the collections of information in 21 CFR part 820 have been approved under OMB control number 0910-0073. The collections of information in 21 CFR parts 1002 through 1050 are approved under OMB control number 0910-0025.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by September 2, 2016.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, Three White Flint North 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Under sections 501(c) and 502(a) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 351(c) and 352(a)), nonsterile devices that are labeled as sterile but are in interstate transit to a facility to be sterilized are adulterated and misbranded. FDA regulations in § 801.150(e) (21 CFR 801.150(e)) establish a control mechanism by which firms may manufacture and label medical devices as sterile at one establishment and ship the devices in interstate commerce for sterilization at another establishment, a practice that facilitates the processing of devices and is economically necessary for some firms.
Under § 801.150(e)(1), manufacturers and sterilizers may sign an agreement containing the following: (1) Instructions for maintaining accountability of the number of units in each shipment, (2) acknowledgment that the devices that are nonsterile are being shipped for further processing, and (3) specifications for sterilization processing. This agreement allows the manufacturer to ship misbranded products to be sterilized without initiating regulatory action and provides FDA with a means to protect consumers from use of nonsterile products. During routine plant inspections, FDA normally reviews agreements that must be kept for 2 years after final shipment or delivery of devices (§ 801.150(a)(2)).
The respondents to this collection of information are device manufacturers and contract sterilizers. FDA's estimate of the reporting burden is based on data obtained from industry over the past several years. It is estimated that each of the firms subject to this requirement prepares an average of 20 written agreements each year. This estimate varies greatly, from 1 to 100, because some firms provide sterilization services on a part-time basis for only one customer, while others are large facilities with many customers. The average time required to prepare each written agreement is estimated to be 4 hours. This estimate varies depending on whether the agreement is the initial agreement or an annual renewal, on the format each firm elects to use, and on the length of time required to reach agreement. The estimate applies only to those portions of the written agreement that pertain to the requirements
In the
FDA estimates the burden of this collection of information as follows:
Notice is hereby given that I have delegated to the Commissioner of Food and Drugs (the Commissioner) those authorities vested in the Secretary of the Department of Health and Human Services under sections 1002; 1003; 1004; 1005(f); and 1006(b) and (d) of the Food and Drug Administration Amendments Act of 2007 (Pub. L. 110-85), which relate to the functions of the Food and Drug Administration.
This authority may be re-delegated. This delegation will be exercised in accordance with the Department of Health and Human Services' applicable policies, procedures, guidelines, and regulations.
I ratify and affirm any actions taken by the Commissioner or the Commissioner's subordinates that involved the exercise of the authority delegated herein prior to the effective date of this delegation. This delegation was effective on November 17, 2015.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Substance Abuse and Mental Health Services Administration (SAMHSA), Department of Health and Human Services (HHS).
Request for comment.
SAMHSA, Center for Substance Abuse Treatment (CSAT), in HHS announces the opening of a docket to obtain public comment on a report entitled: Advancing the Care of Pregnant and Parenting Women with Opioid Use Disorder and their Infants: A Foundation for Clinical Guidance.
This report describes the formal process agreed on and followed under the guidance of the federal steering committee (FSC). It explains the RAND Corporation (RAND)/University of California Los Angeles (UCLA)
You may submit comments identified by Docket No. [SAMHSA-2016-0002] by any of the following methods:
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Melinda Campopiano, MD, Medical Officer, SAMHSA, CSAT, Division of Pharmacologic Therapies, 5600 Fishers Lane, 13E24, Rockville, MD 20852, Email:
The purpose of this effort is to produce a patient-centered guide to be used in a range of clinical settings. SAMHSA plans to organize the results described in this report around clinical scenarios and interventions consistent with the range of ways that women with opioid use disorder may access substance use treatment or maternity care. The guide will provide options for clinical interventions that recognize the complexities of patients' lives. The guide will also include discussion of any conflicting evidence and clinician, treatment or patient characteristics that directly influence the appropriateness or effectiveness of a given clinical intervention. The paucity of the evidence to support specific interventions will be addressed in the guide. As such, the guide will present options based on current clinical practice, paired with the risks and benefits of each option as currently understood.
(1) The REPORT.
(2)
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports,
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-7659, or (email),
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Privacy Office, DHS.
Committee management; notice of committee charter renewal.
The Secretary of Homeland Security has determined that the re-establishment of the Data Privacy and Integrity Advisory Committee is necessary and in the public interest in connection with the Department of Homeland Security's performance of its duties. This determination follows consultation with the Committee Management Secretariat, General Services Administration.
The committee's charter is effective June 30, 2016, and expires June 30, 2018.
If you desire to submit comments on this action, they must be submitted by October 3, 2016. Comments must be identified by DHS Docket Number (DHS-2016-0049) and may be submitted by
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Sandra Taylor, Designated Federal Officer, DHS Data Privacy and Integrity Advisory Committee, Department of Homeland Security, 245 Murray Lane SW., Mail Stop 0655, Washington, DC 20528, by telephone (202) 343-1717, by fax (202) 343-4010, or by email to
Office of the Secretary, Interior.
Notice; correction.
The Department of the Interior published a notice in the
Please see the
Please submit written comments by email to
Ms. Debra DuMontier, Office of the Special Trustee for American Indians at
On June 22, 2016, President Obama signed into law the Indian Trust Asset Reform Act, Public Law 114-178. Title III of this Act:
• Allows the Secretary of the Interior to establish an Under Secretary for Indian Affairs who is to report directly to the Secretary of the Interior and coordinate with OST to ensure an orderly transition of OST functions to an agency or bureau within Interior;
• Requires Interior to prepare a transition plan and timetable for how identified OST functions might be moved to other entities within the Department of the Interior;
• Requires appraisals and valuations of Indian trust property to be administered by a single administrative entity within Interior; and
• Requires Interior to establish minimum qualifications for individuals to prepare appraisals and valuations of Indian trust property and allow an appraisal or valuation by a qualified person to be considered final without being reviewed or approved by Interior.
The Department is hosting listening sessions and consultation sessions with Indian Tribes and trust beneficiaries on each of these items at the following dates and locations. This information corrects the Albuquerque information listed in the notice published in the
Additional information, including the OST functions that may be transferrable to other entities within Interior and potential options for the single entity within Interior that could perform all appraisal services for Indian trust property, are available
National Park Service, Interior.
Notice.
The University of Pennsylvania Museum of Archaeology and Anthropology has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the University of Pennsylvania Museum of Archaeology and Anthropology. If no additional requestors come forward, transfer of control of the human remains to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the University of Pennsylvania Museum of Archaeology and Anthropology at the address in this notice by September 2, 2016.
Dr. Julian Siggers, Director, University of Pennsylvania Museum of Archaeology and Anthropology, Philadelphia, PA 19104, telephone (215) 898-4050.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the University of Pennsylvania Museum of Archaeology and Anthropology, Philadelphia, PA. The human remains were removed from unknown locations in Michigan; in Wayne County, Michigan and in Milwaukee County, Wisconsin.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the University of Pennsylvania Museum of Archaeology and Anthropology professional staff in consultation with representatives of the Menominee Indian Tribe of Wisconsin; Pokagon Band of Potawatomi Indians, Michigan and Indiana; and with the Michigan Anishinaabek Cultural Preservation & Repatriation Alliance, a non-federally recognized entity, representing the following federally recognized tribes: Bay Mills Indian Community, Michigan; Grand Traverse Band of Ottawa and Chippewa Indians, Michigan; Hannahville Indian Community, Michigan; Keweenaw Bay Indian Community, Michigan; Lac Vieux Desert Band of Lake Superior Chippewa Indians of Michigan; Little River Band of Ottawa Indians, Michigan; Little Traverse Bay Bands of Odawa Indians, Michigan; Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Nottawaseppi Huron Band of the Potawatomi, Michigan (previously listed as the Huron Potawatomi, Inc.); Saginaw Chippewa Indian Tribe of Michigan; and the Sault Ste. Marie Tribe of Chippewa Indians, Michigan, hereafter referred to as “The Consulted Tribes.”
At an unknown date between 1836 and 1839, human remains representing, at minimum, five individuals (UPM #: 97-606-35; 97-606-44; 97-606-78; 97-606-563; 97-606-1220) were removed
At an unknown date between 1820 and 1837, human remains representing, at minimum, one individual (UPM #: 97-606-454) were removed from an unknown site in Michigan or Wisconsin by Dr. Richard S. Satterlee, Assistant Surgeon for the U.S. Army. In this capacity, Dr. Satterlee served at the Detroit Barracks, MI, Fort Howard, WI, Fort Mackinac, MI, Fort Winnebago, WI, and for a second term at Fort Howard, WI. It is during this time that the human remains were collected. In 1837, Satterlee was sent to Florida. The human remains were transferred to Dr. Samuel Morton in Philadelphia for inclusion in his collection of human crania from around the world prior to 1839. The human remains are those of a single female individual estimated to be 20-30 years old and are represented by a cranium and mandible. There is little pathology represented on the bones and teeth, and the condition of the human remains suggests they were not buried. No known individuals were identified. No associated funerary objects are present.
At an unknown date, human remains representing, at minimum, one individual (UPM #: 97-606-1222) were removed from an unknown site, possibly in Michigan. Prior to 1849, Mr. John P. Wetherill of Philadelphia sent the human remains to Dr. Samuel G. Morton. The human remains are represented by a cranium and mandible of a single male, 30-40 years of age. This individual is identified as “Natonake, a Menominee Chief.” No known individuals were identified. No associated funerary objects are present.
At this time, the Academy of Natural Sciences of Philadelphia provided storage space for much of Dr. Morton's collections, including these human remains, until his death in 1851. In 1853, Dr. Morton's collection, including all of the human remains described above, were purchased from Dr. Morton's Estate and formally presented to the Academy of Natural Sciences. In 1966, Dr. Morton's collection was loaned to the University of Pennsylvania Museum of Archaeology and Anthropology. In 1997, the collection was formally gifted to the University of Pennsylvania Museum of Archaeology and Anthropology.
Museum collections and published literature indicate that the seven sets of human remains date to the Historic Period. The human remains have been identified as Native American based on the specific cultural and geographic attributions in the museum records. Collector's records, museum documentation and published historical sources identify the human remains above as Menominee. Scholarly ethno-historic and anthropological publications and land cession records indicate that the areas from which the human remains were removed are within the traditional aboriginal territory of the Menominee Indians, and historic Menominee occupation sites within these areas have been identified.
Officials of the University of Pennsylvania Museum of Archaeology and Anthropology have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 7 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Menominee Indian Tribe of Wisconsin.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Dr. Julian Siggers, University of Pennsylvania Museum of Archaeology and Anthropology, 3260 South Street, Philadelphia, PA 19104, telephone (215) 898-4050, by September 2, 2016. After that date, if no additional requestors have come forward, transfer of control of the human remains to the Menominee Indian Tribe of Wisconsin may proceed.
The University of Pennsylvania Museum of Archaeology and Anthropology is responsible for notifying The Consulted Tribes that this notice has been published.
Office of Justice Program, Department of Justice.
60-day notice.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Assistance, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until October 3, 2016.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact C. Casto at 1-202-353-7193, Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice, 810 7th Street NW., Washington, DC 20531 or by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
—Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
—Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
—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,
(1) Type of information collection: Extension, without change, of a currently approved collection.
(2) The title of the form/collection: Bulletproof Vest Partnership Application.
(3) The agency form number, if any, and the applicable component of the Department sponsoring the collection: None. Bureau of Justice Assistance, United States Department of Justice.
(4) Affected public who will be asked or required to respond, as well as a brief abstract: Jurisdictions and law enforcement agencies with armor vest needs.
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond/reply: It is estimated that no more than 4,500 respondents will apply each year. Each application takes approximately 1 hour to complete.
(6) An estimate of the total public burden (in hours) associated with the collection: Approximately 4,500 hours.
If additional information is required, contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Suite 3E-405B, Washington, DC 20530.
On July 28, 2016, the Department of Justice lodged a proposed consent decree with the United States District Court for the District of Nevada in the lawsuit entitled
The complaint in this lawsuit involves claims that the Nevada Department of Transportation (“NDOT”) discharged pollutants from its municipal separate storm water system into waters of the United States in violation of its National Pollution Discharge Elimination System Permit. Under the Decree, NDOT will develop and implement programs to control discharges from construction activity, areas that are redeveloped or newly developed, and from activities NDOT conducts to operate and maintain the highway system. NDOT will pay a civil penalty of $120,000 to be split evenly between the United States and the State of Nevada, Department of Conservation and Natural Resources. NDOT will also implement a Real-Time Water Quality Data Availability Supplemental Environmental Project.
The publication of this notice opens a period for public comment on the consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the consent decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $12.50 (25 cents per page reproduction cost) payable to the United States Treasury.
National Institute of Justice, Justice.
Notice.
This notice announces the opening of the public comment period for the DRAFT “National Best Practices for Sexual Assault Kits: A Multidisciplinary Approach.”
Written public comment regarding the publication should be submitted through
Heather Waltke, Associate Director, Office of Investigative and Forensic Sciences, National Institute of Justice, 810 7th Street NW., Washington, DC 20531, or via email at
The Sexual Assault Forensic Evidence Reporting Act of 2013 (the “SAFER Act”) was enacted as Title X of Public Law 113-4, the Violence Against Women Reauthorization Act of 2013. It was created, in part, to develop protocols and practices appropriate for the accurate, timely, and effective collection and processing of DNA evidence, including protocols and practices specific to sexual assault cases, which shall address appropriate steps in the investigation of cases that might involve DNA evidence[.]”
The National Institute of Justice (NIJ)—the research, development and evaluation agency of the U.S. Department of Justice—convened several working group meetings representing victims, victim advocates, sexual assault nurse examiners, medical examiners, forensic laboratories, law enforcement agencies, prosecutors and the judiciary. The working group was directed to address issues relating to evidence collection; prioritization of evidence and time periods for collection; evidence inventory, tracking, and auditing technology solutions; and communication strategies. The working group met over a twenty-four month period to develop recommendations for sexual assault evidence, whether it originates from a SAK collected decades ago and was recently discovered in storage during a statutorily-mandated inventory or, from a SAK collected in connection with a recent sexual assault. Following months of drafting and deliberations, including input from many stakeholders during that time, NIJ is now requesting comments on a DRAFT document titled, “
In accordance with the Federal Records Act, please note that all comments received are considered part of the public record, and shall be made available for public inspection online at
DOJ will post all comments received on
Veterans' Employment and Training Service (VETS), Department of Labor.
Notice of open meeting.
This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the ACVETEO. The ACVETEO will discuss the DOL core programs and services that assist veterans seeking employment and raise employer awareness as to the advantages of hiring veterans. There will be an opportunity for individuals or organizations to address the committee. Any individual or organization that wishes to do so should contact Mr. Gregory Green at 202-693-4734.
Individuals who will need accommodations for a disability in order to attend the meeting (
Wednesday, August 31, 2016 beginning at 9:00 a.m. and ending at approximately 4:00 p.m. (EST).
The meeting will take place at the U.S. Department of Labor, Frances Perkins Building, 200 Constitution Avenue NW., Washington, DC 20210, Conference Room N-4437 A & B. Members of the public are encouraged to arrive early to allow for security clearance into the Frances Perkins Building.
1. Present a valid photo ID to receive a visitor badge.
2. Know the name of the event being attended: The meeting event is the Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO).
3. Visitor badges are issued by the security officer at the Visitor Entrance located at 3rd and C Streets NW. When receiving a visitor badge, the security officer will retain the visitor's photo ID until the visitor badge is returned to the security desk.
4. Laptops and other electronic devices may be inspected and logged for identification purposes.
5. Due to limited parking options, Metro's Judiciary Square station is the easiest way to access the Frances Perkins Building.
Mr. Gregory Green, Assistant Designated Federal Official for the ACVETEO, (202) 693-4734.
The ACVETEO is a Congressionally mandated advisory committee
Signed in Washington, DC, this 26th day of July, 2016.
National Credit Union Administration (NCUA).
Notice and request for comment.
NCUA, as part of a continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a reinstatement of a previously approved collection, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35).
Written comments should be received on or before October 3, 2016 to be assured consideration.
Interested persons are invited to submit written comments on the information collection to Dawn Wolfgang, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314, Suite 5067; Fax No. 703-519-8579; or Email at
Requests for additional information should be directed to the address above.
Adjustment reflects a reduction in the number of respondents due to a decline in the number of FICUs.
Comments submitted in response to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will become a matter of public record. The public is invited to submit comments concerning: (a) Whether the collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of the information on the respondents, including the use of automated collection techniques or other forms of information technology.
By Gerard Poliquin, Secretary of the Board, the National Credit Union Administration, on July 28, 2016.
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 the information collection entitled, “NRC Form 212, Qualifications Investigation, Professional, Technical and Administrative Positions.”
Submit comments by October 3, 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-2016-0070 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-2016-0070 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.
U.S. Nuclear Regulatory Commission.
Notice of meeting.
NRC will convene a meeting of the Advisory Committee on the Medical Uses of Isotopes (ACMUI) on October 6-7, 2016. A sample of agenda items to be discussed during the public session includes: An update on medical-related events; a discussion on the reporting of medical events for various
Michelle Smethers, email:
Philip O. Alderson, M.D., will chair the meeting. Dr. Alderson will conduct the meeting in a manner that will facilitate the orderly conduct of business. The following procedures apply to public participation in the meeting:
1. Persons who wish to provide a written statement should submit an electronic copy to Ms. Smethers using the contact information listed above. All submittals must be received by October 3, 2016, and must pertain to the topic on the agenda for the meeting.
2. Questions and comments from members of the public will be permitted during the meeting, at the discretion of the Chairman.
3. The draft transcript and meeting summary will be available on ACMUI's Web site
4. Persons who require special services, such as those for the hearing impaired, should notify Ms. Smethers of their planned attendance.
This meeting will be held in accordance with the Atomic Energy Act of 1954, as amended (primarily Section 161a); the Federal Advisory Committee Act (5 U.S.C. App); and the Commission's regulations in Title 10 of the
Nuclear Regulatory Commission.
Standard review plan—final section revision; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing a final revision to Section 5.4.2.1, “Steam Generator Materials and Design,” of NUREG-0800, “Standard Review Plan [SRP] for the Review of Safety Analysis Reports for Nuclear Power Plants: LWR [Light Water Reactor] Edition.” Revision 4 to Section 5.4.2.1 of the SRP reflects current NRC review methods and practices based on lessons learned from NRC reviews of design certification and combined license applications completed since the last revision of this section.
The effective date of Revision 4 to Section 5.4.2.1 of the SRP is September 2, 2016.
Please refer to Docket ID NRC-2016-0045 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
• The NUREG-0800 is available on the NRC's public Web site at
Carolyn Lauron, telephone: 301-415-2736, email:
On April 22, 2016 (81 FR 23762), the NRC published for public comment the proposed revisions to SRP Section 5.4.2.1. The NRC received no comments on the proposed revisions. Therefore, the NRC is issuing Revision 4 to Section 5.4.2.1 of the SRP in final form for use. There have been minor editorial changes to this section since its issuance in proposed form for public comment. Details of the specific changes are included at the end of the revised section, under the subsection titled, “Description of Changes.”
Revision 4 to Section 5.4.2.1 of the SRP reflects current NRC review methods and practices based on lessons learned from NRC reviews of design certification and combined license applications completed since the last revision of this section.
Issuance of this revised SRP section does not constitute backfitting as defined in § 50.109 of title 10 of the
The SRP provides guidance to the NRC staff on how to review an application for the NRC's regulatory approval in the form of licensing. Changes in internal NRC staff guidance are not matters for which either nuclear power plant applicants or licensees are protected under either the Backfit Rule or the issue finality provisions of 10 CFR part 52.
The NRC staff does not intend to impose or apply the positions described in the SRP to existing (already issued) licenses and regulatory approvals. Therefore, the issuance of a final SRP—even if considered guidance that is within the purview of the issue finality provisions in 10 CFR part 52—need not be evaluated as if it were a backfit or as being inconsistent with issue finality provisions. If, in the future, the NRC staff seeks to impose a position in the SRP on holders of already issued licenses in a manner which does not provide issue finality as described in the applicable issue finality provision, then the NRC staff must make the showing as set forth in the Backfit Rule or address the criteria for avoiding issue finality as described in the applicable issue finality provision.
Applicants and potential applicants are not, with certain exceptions, protected by either the Backfit Rule or any issue finality provisions under 10 CFR part 52. This is because neither the Backfit Rule nor the issue finality provisions under 10 CFR part 52—with certain exclusions discussed in the next paragraph—were intended to apply to every NRC action which substantially changes the expectations of current and future applicants.
The exceptions to the general principle are applicable whenever an applicant references a 10 CFR part 52 license (
This SRP section revision is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Exemption; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an exemption in response to a September 30, 2016, request from Virginia Electric Power Company (Dominion or the licensee) in order to use AREVA's M5® alloy fuel rod cladding material at Surry Power Station, Unit Nos. 1 and 2 (SPS).
The exemption was issued on July 27, 2016.
Please refer to Docket ID NRC-2016-0105 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Karen R. Cotton, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1438, email:
Dominion is the holder of Facility Operating License Nos. DPR-32 and DPR-37, which authorize operation of SPS. The licenses provide, among other things, that the facility is subject to all rules, regulations, and orders of the NRC now or hereafter in effect.
The facility consists of two pressurized-water reactors (PWR) located in Surry County, Virginia.
Pursuant to § 50.12 of title 10 of the
Pursuant to 10 CFR 50.12, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR part 50 when the exemptions are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security. However, 10 CFR 50.12(a)(2) states that the Commission will not consider granting an exemption unless special circumstances are present as set forth in 10 CFR 50.12(a)(2). Under 10 CFR 50.12(a)(2)(ii), special circumstances are present when application of the regulation in the particular circumstances would not serve, or is not necessary to achieve, the underlying purpose of the rule.
Special circumstances, in accordance with 10 CFR 50.12(a)(2)(ii), are present whenever application of the regulation in the particular circumstances is not necessary to achieve the underlying purpose of the rule. The underlying purpose of 10 CFR 50.46 and 10 CFR part 50, appendix K, is to establish acceptance criteria for ECCS performance to provide reasonable assurance of safety in the event of a LOCA. The special circumstance that necessitates the request for exemption to 10 CFR 50.46 and 10 CFR 50, appendix K, is that neither of these regulations explicitly allows the use of AREVA's M5® alloy fuel rod cladding material. The ultimate objective of 10 CFR 50.46 is to ensure that nuclear power reactors fueled with uranium oxide pellets within zircaloy or ZIRLO
The objective of 10 CFR 50.46(b)(2) and (b)(3), and 10 CFR part 50, appendix K I.A.5, is to ensure that cladding oxidation and hydrogen generation are appropriately limited during a LOCA and conservatively accounted for in the ECCS evaluation model. Appendix K of 10 CFR part 50 requires that the Baker-Just equation be used in the ECCS evaluation model to determine the rate of energy release, cladding oxidation, and hydrogen generation. AREVA NP has shown in an appendix of Topical Report BAW-10227-A that the Baker-Just model is conservative in all post-LOCA scenarios with respect to the use of AREVA's M5® alloy fuel rod cladding material.
Based on the regulatory review of the exemption request, the NRC staff concludes that the intent of 10 CFR 50.46 and 10 CFR part 50, appendix K, will continue to be satisfied for the planned operation of SPS with AREVA's M5® alloy fuel rod cladding material used for non-limiting LTAs and the special circumstance required by 10 CFR 50.12(a)(2)(ii) for granting of an exemption exists.
This exemption would allow the use of fuel rods clad with AREVA's M5® alloy in up to eight fuel assemblies at SPS. The regulations in 10 CFR 50.12 allow the NRC to grant exemptions from the requirements of 10 CFR part 50 provided that the exemptions are authorized by law. The NRC staff determined that special circumstances exist to grant the proposed exemption and that granting the exemption would not result in a violation of the Atomic Energy Act of 1954, as amended. Therefore, the exemption is authorized by law.
The provisions of 10 CFR 50.46 establish acceptance criteria for ECCS performance. Topical Report BAW-10227-A contains the justification to use AREVA's M5® alloy fuel rod cladding material, a proprietary variant of Zr1Nb, to replace Zircaloy-4 in the construction of fuel assembly components such as fuel rod cladding, guide tubes, and spacer grids. This justification is required to support the request by Dominion for an exemption to 10 CFR 50.46 to permit the use of AREVA's M5® alloy fuel rod cladding material, in addition to Zircaloy-4 and ZIRLO
An AREVA NP LOCA evaluation showed compliance with 10 CFR 50.46. Topical Report BAW-10227-A has addressed all of the important aspects of AREVA's M5® alloy fuel rod cladding material with respect to ECCS performance requirements, as follows:
• Since the material properties of AREVA's M5® alloy are similar to those of zirconium-based materials, the NRC staff found it appropriately conservative to apply the criteria in 10 CFR 50.46 and 10 CFR part 50, appendix K.
• Material properties of AREVA's M5® alloy, including cladding thermal conductivity, cladding creep, clad swelling, rupture deformation, and temperature, were found to be very similar to those of Zircaloy-4.
• The retention of the Baker-Just equation for the calculation of metal-water reaction rate specified in 10 CFR part 50, appendix K, is justified to be suitably conservative.
Based on the NRC staff's evaluation of the exemption request, the staff concludes that the intent of 10 CFR 50.46 and 10 CFR part 50, appendix K, will continue to be satisfied for the planned operation of SPS, with AREVA's M5® alloy fuel rod cladding material used in up to eight non-limiting LTAs. The probability of postulated accidents is not increased. Also, based on the NRC staff's evaluation of the exemption request, the consequences of postulated accidents are not increased. Therefore, there is no undue risk to public health and safety due to using M5® alloy fuel cladding and fuel assembly material in up to eight non-limiting LTAs.
The proposed exemption would allow the use of AREVA's M5® alloy fuel rod cladding material at SPS. This change to the plant configuration is adequately controlled by technical specification
Accordingly, the Commission has determined that, pursuant to 10 CFR 50.12(a), the exemption is authorized by law, will not present an undue risk to the public health and safety, is consistent with the common defense and security, and that special circumstances are present to warrant issuance of the exemption. Therefore, the Commission hereby grants SPS an exemption from the requirements of 10 CFR 50.46 and 10 CFR part 50, appendix K, paragraph I.A.5, to allow the use of AREVA's M5® alloy fuel rod cladding material in up to eight non-limiting LTAs at SPS.
Pursuant to 10 CFR 51.32, an environmental assessment and finding of no significant impact related to this exemption was published in the
This exemption is effective upon issuance.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning minor classification changes to the Country Price Lists for International Mail. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On July 27, 2016, the Postal Service filed a notice of a minor classification change regarding the Country Price Lists for International Mail in Part D of the Mail Classification Schedule (MCS), under Commission rules 39 CFR 3020.90 and 3020.91.
Pursuant to 39 CFR 3020.92, the Commission has posted the Notice on its Web site and invites comments on whether the Postal Service's filings in Docket No. MC2016-172 are consistent with the policies of 39 U.S.C. 3642 and 39 CFR 3020 subpart E. Comments are due no later than August 4, 2016. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Katrina R. Martinez to represent the interests of the general public (Public Representative) in this docket.
1. The Commission establishes Docket No. MC2016-172 to consider matters raised by the Notice.
2. Pursuant to 39 U.S.C. 505, Katrina R. Martinez is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
3. Comments by interested persons are due by August 4, 2016.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
This proposed rule change by The Options Clearing Corporation (“OCC”) concerns modifications and enhancements to OCC's governance arrangements. OCC is proposing to amend its Certificate of Incorporation, By-Laws, and Board of Directors (“Board”) Charter to require that only one Management Director serve on OCC's Board (as opposed to the current requirement of two Management Directors). Moreover, OCC is proposing to amend its By-Laws and Rules to delete all references to the title and responsibilities of the Management Vice Chairman. In addition, OCC is proposing to amend its By-Laws to: (i) Provide that the Compensation and Performance Committee (“CPC”)
All capitalized terms not defined herein have the same meaning as set forth in the OCC By-Laws and Rules.
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
The purpose of this proposed rule change is to implement a number of modifications and enhancements to OCC's governance arrangements. Specifically, as a result of the Board's continual evaluation of OCC's governance arrangements, OCC is proposing to change the composition requirements of its Board to require that one Management Director serves on OCC's Board (as opposed to two) and to eliminate the role of Management Vice Chairman to provide more clarity and transparency regarding the status of these roles at OCC. In addition, OCC is proposing to amend its By-Laws to, among other things: (i) Provide that the CPC and the AC each will be chaired by a Public Director to underscore and reinforce the independence of those committees and align with governance best practices and practices of other self-regulatory organizations; (ii) modify the composition requirements of the RC, including to provide that an Exchange Director be a member of the RC to provide the RC with additional expertise and unique perspective on matters such as market risk and special risks arising from trading practices and strategies, and new products; (iii) provide for Board action in the nomination process for Member Directors and Public Directors of OCC's Board to ensure an appropriate level of oversight and participation by the Board in determining its own composition and that the composition of the Board fulfils its needs for particular skills and qualifications; (iv) eliminate term limits for Public Directors in the interest of ensuring that OCC has access to the full benefits of a Public Director's understanding and learning, with respect to OCC and the markets OCC serves, as that knowledge develops over time; and (v) consolidate By-Laws sections that identify the committees of the Board into a single section of the By-Laws to provide more clarity and transparency to OCC's participants regarding the existence and composition of such Committees.
OCC is also proposing amendments to the Charters of OCC's Board, AC, CPC, GNC, RC, and TC that stem from scheduled reviews of such documents. The proposed amendments to the Board and Committee Charters are designed, in general, to provide more clarity and transparency around the oversight functions and responsibilities of the Board and each of its Committees and provide for a more comprehensive and robust oversight framework for the financial reporting, audit and compliance, compensation and performance, governance and nomination, risk, and technology functions at OCC.
The proposed amendments to OCC's Certificate of Incorporation, By-Laws, Rules, Board and Committee Charters, and Amended and Restated Stockholders Agreement are described in detail below.
OCC is proposing to amend its Certificate of Incorporation to state that the number of Management Directors serving on OCC's Board shall be such number as shall be fixed by or pursuant to OCC's By-Laws.
OCC is proposing to amend Article III, Section 1 of its By-Laws to state that only one Management Director will serve on OCC's Board (as opposed to the current requirement of two). As noted above, OCC's Board continually evaluates the leadership structure at OCC, including the appropriate number of Management Directors for OCC's Board, and believes that amending the Board composition to require one Management Director on OCC's Board would continue to provide an appropriate level of management representation in the Board-level oversight of OCC. OCC is also proposing conforming changes to Article III, Sections 10 (Resignations) and 12 (Filling of Vacancies and Newly Created Directorships) of the By-Laws to reflect that only one Management Director, the Executive Chairman, would be serving on OCC's Board.
OCC proposes to amend its By-Laws and Rules to eliminate the role of Management Vice Chairman. The office of Management Vice Chairman has been vacant for a number of years and has not been included in the Board's current discussions regarding management succession planning. During that time, the thought process surrounding leadership roles at OCC has evolved. OCC believes that any of the responsibilities of the Management Vice Chairman are already appropriately handled by other officers of OCC, primarily the Executive Chairman and President (or where applicable, other officers such as the Secretary or Directors such as the Member Vice Chairman)
In particular, OCC is proposing to amend (i) By-Laws Article I.A.(13); Article II, Section 4; Article III, Section 15; Article IV; Article V, Sections 1 and 3; Article VI, Section 17; Article VIII, Section 5; Article IX, Sections 12 and 14 and (ii) Rules 305, 309, 309A, 505, 609A, 801, 804, 805, 901, 903, 1104, 1106, 1309, 1402, 1405, 1604, 1610, 2104, 2110, and 2408 to remove all references to and responsibilities of the role of Management Vice Chairman.
OCC is proposing to amend Article III of its By-Laws in order to provide descriptions of the AC, CPC, GNC, RC, and TC in a single section of the By-Laws. Specifically, OCC is proposing to consolidate existing Article III, Section 4 (which concerns the GNC) and existing Article III, Section 9 (which concerns the RC,
The proposed description of the AC would reflect existing requirements in the AC and GNC Charters that, on an annual basis, the Board of Directors shall appoint an AC selected from among the directors recommended by the then-constituted GNC after consultation with the Executive Chairman and shall serve at the pleasure of the Board, provided that no Management Director may serve on the Audit Committee. The proposed description of the AC would also include a new requirement that the chairman of the AC shall be designated by the Board from among the Public Director member(s) of the Committee (as described further below).
The proposed description of the CPC would reflect the existing requirement that, on an annual basis, the Board of Directors shall appoint a CPC and that the CPC generally consists of the Executive Chairman, the Member Vice Chairman, and at least one Public Director.
OCC is proposing amendments to Article IV, Section 1 of the By-Laws to provide that the Board will elect the Executive Chairman and Vice Chairman of the Board upon the nomination of the GNC and also elect the President of OCC (in addition to the Secretary and Treasurer). In addition, OCC proposes amendments to Article IV, Section 7 to delete a requirement that the Member Vice Chairman preside at the meetings of any Committee of the Board of Directors charged with the responsibility for evaluating the performance and compensation of officers as the CPC would now be chaired by a Public Director. OCC also proposes amendments to clarify that the Member Vice Chairman would preside over meetings of the Board and stockholders in the absence of the Executive Chairman because the President cannot preside over meetings of the Board.
In addition to the proposed changes described above, OCC is also proposing
Additionally, the GNC reviewed proposed regulatory standards for audit committees of self-regulatory organizations that would require such audit committees to be independent based on facts determined by a given self-regulatory organization's board of directors. Such review caused the GNC to recommend to the Board that a Public Director should be required to chair the AC in order to align with governance best practices for audit committees and to support the objectivity of the AC. The Board agreed with the GNC's recommendation. Moreover, and in furtherance of the goal of AC independence, any currently serving Management Director(s) would not be eligible to serve on the AC.
OCC is proposing to amend Article III of its By-Laws to modify the composition requirements of OCC's RC. Existing Article III, Section 9 of OCC's By-Laws currently requires that the RC shall consist of the Executive Chairman, the Member Vice Chairman, at least three other Member Directors selected on a basis that shall not discriminate against any Exchange, and one or more Public Directors. OCC is proposing to replace this description of the RC with new Article III, Section 4(d), which would relocate and modify the RC composition requirements to (i) provide that an Exchange Director
The GNC reviewed the membership composition of the RC and determined that one Exchange Director should be a member of the RC. Historically, the RC did not include Exchange Directors because Member Directors were much more directly concerned with the risk management and membership function of OCC due to the mutualization of risk among Clearing Members as well as the fact that Clearing Members are responsible for the contribution of margin and clearing fund deposits. Given the evolution of the markets for which OCC provides clearance and settlement services, OCC now believes that an Exchange Director should be a member of the RC. Exchange Directors have expertise and unique perspective on matters such as market risk as well as sophistication as to special risks arising from trading practices, strategies and new products.
In addition, the GNC recommended, and the Board approved, a reduction in the minimum composition requirement for Member Directors on the RC to allow for greater flexibility in the selection of Directors with the requisite skills and expertise to serve on the RC. OCC believes that Member Director participation on the RC is vital and would therefore continue to require that at least one Member Director serves on the RC. OCC also believes, however, that it is necessary and appropriate to maintain flexibility to ensure that the RC is comprised of those Directors that have the appropriate mix of knowledge and expertise necessary to provide for the prudent oversight of risk matters at OCC.
OCC is proposing to make amendments to Article III, Sections 5 and 6A; Article IV, Section 1; and adopt Amendment No. 1 to Amended and Restated Stockholders Agreement to provide for Board action in the nomination process for Member Directors, Public Directors, the Executive Chairman, and Member Vice Chairman in conformance with the process set forth in the GNC Charter.
OCC is proposing to amend Article III, Section 6A of its By-Laws, Section IV.1. of the GNC Charter, and Section II.D. of the Board Charter in order to remove term limits for Public Directors. OCC believes it is appropriate to eliminate term limits for Public Directors because the learning curve for directors of OCC is significant. It is generally recognized that it often takes several years for directors who come from outside the industry to achieve the particularized degree of knowledge and understanding about the business that is necessary to provide significant value. Additionally, the GNC reviewed OCC's term limit policy for Public Directors in light of benchmark data and governance trends and determined that the elimination of term limits for Public Directors is consistent with governance arrangements at large corporations.
OCC proposes amendments to the Board Charter that are intended to: (i) Harmonize the description of the Board's obligations in the Board Charter with the description of the Board's obligations in OCC's By-Laws and Rules; (ii) better align the Board Charter with the Board's Corporate Governance Principles and By-Laws; (iii) reflect recent changes involving Board Committee Charters; (iv) in general, restate the Board's oversight responsibilities in a manner designed to provide for prudent governance arrangements in light of OCC's role as a systemically important financial market utility; and (v) make certain non-substantive administrative changes to the Charter. The proposed amendments are described in more detail below.
OCC proposes amendments to Section II of the Board Charter regarding membership and organization requirements to reflect the elimination of the role of Management Vice Chairman as described above. As a result, in the event that the Executive Chairman is absent or disabled, the Member Vice Chairman shall preside over meetings of the Board. OCC also proposes amendments that would allow for additional meetings of the Board being called as the Board deems appropriate (such meetings shall be called by the Executive Chairman or his designee) and to specify that the Executive Chairman shall consult with the Corporate Secretary (in addition to other directors or officers) when establishing Board meeting agendas.
OCC also proposes amendments intended to strengthen the Board's governance framework and practices surrounding meetings in executive sessions by providing added structure regarding the convening and attendance of executive sessions and promoting the enhanced recordation of important meeting events and discussions. In particular, the proposed amendments would: (i) Require that the Board meet in executive session at each regular meeting of the Board; (ii) allow the Board to determine who will participate in such sessions; (iii) provide for the exclusion of management, invited guests, and individual directors from executive sessions where discussions may involve certain sensitive matters or conflicts of interest; and (iv) require the Board to select a Director to chair executive sessions in the absence of the Executive Chairman. The proposed amendments would also require that Board meeting minutes reflect, at least in summary fashion, the general matters discussed in an executive session. Specifically, the chair of the executive session would determine whether separate minutes of the executive sessions are to be recorded as well as determine the level of detail to be included in such minutes, provided that Board meeting minutes must, at a minimum, reflect that an executive session was convened and broadly describe the topic(s) discussed.
In addition, OCC proposes to amend the Board Charter to state that the Board is comprised of one Management Director, rather than two Management Directors, in conformance with the proposed Certificate of Incorporation and By-Laws changes described above. The Board Charter would also be amended to reflect an increase in the number of Public Directors serving on the Board from three to five.
Additionally, in order to achieve a balanced representation on the Board among Member Directors, OCC proposes amendments to the Board Charter to state that the considerations involved in determining the nomination of Member Directors should include the volume of business transacted with OCC during the prior year and the mix of Member Directors that are primarily engaged in agency trading on behalf of retail customers or individual investors. The proposed amendments reinforce the existing requirement in Article III, Section 5 of OCC's By-Laws that the GNC shall endeavor to achieve balanced representation among Clearing Members on the Board of Directors to assure that: (i) Not all Member Directors are representatives of the largest Clearing Member Organizations based on the prior year's volume, and (ii) the mix of Member Directors includes representatives of Clearing Member Organizations that are primarily engaged in agency trading on behalf of retail customers or individual investors. OCC proposes to remove geographic location of Clearing Members as a factor for consideration as OCC believes that location is no longer a significant consideration given modern technology and the evolution of the industry.
OCC also proposes to add language to the Board Charter to discourage Directors from attending meetings of the Board by telephone as currently provided in the Code of Conduct for OCC Directors. Attendance by telephone would be generally discouraged because OCC believes the Board may be less likely to have the kind of interaction that leads to fully informed discussions and decisions than if Board members were to meet in person.
OCC proposes amendments to the Board Charter that are primarily intended to: (i) Harmonize the description of the Board's obligations in the Board Charter with the description of the Board's obligations in OCC's By-Laws and Rules as well as the Board's Corporate Governance Principles
In cases when an obligation of the Board is expressed in both the Board Charter and OCC's By-Laws and Rules, OCC is proposing to remove the obligation from the Board Charter. These charter provisions would be replaced by a general statement that the Board would perform those functions as the Board believes appropriate or necessary, or as otherwise prescribed by rule or regulation, including OCC's By-Laws and Rules.
OCC also proposes amendments to Section IV of the Board Charter designed to provide for prudent governance arrangements emphasizing that the Board's oversight role should operate in a manner consistent with its responsibilities as a designated systemically important financial market utility. Specifically, OCC proposes to amend the Charter to state that the responsibilities of the Board include: (i) Overseeing management's activities in managing, operating and developing
In addition, OCC proposes to modify certain existing Board Charter provisions related to the responsibilities of the Board. Specifically, OCC propose [sic] amendments that would specify that, in addition to overseeing major capital expenditures and approving the annual budget and corporate plan, the Board is responsible for reviewing and approving OCC's financial objectives and strategies, capital plan and capital structure, OCC's fee structure, and major corporate plans and actions, as well as periodically reviewing the types and amounts of insurance coverage available in light of OCC's clearing operations. OCC also proposes amendments to specify that the Board's responsibility for fostering OCC's compliance with applicable laws and regulations includes compliance with banking, securities and corporation laws and other applicable regulatory guidance and standards. Additionally, OCC proposes amendments to provisions related to the oversight of succession planning and executive compensation to state more specifically that the Board is responsible for evaluating and fixing the compensation of the Executive Chairman and President; overseeing succession planning, human resource programs, and talent management processes; and overseeing the development and design of employee compensation, incentive and benefit programs.
OCC is also proposing non-substantive organizational changes in Section IV of the Board Charter. Specifically, OCC proposes amendments that would combine provisions related to the Board's responsibilities for approving and overseeing OCC's business strategies and monitoring OCC's performance of clearance and settlement services.
In addition to the changes described above, certain of the proposed amendments to the Board Charter are meant to address non-substantive, administrative issues. For example, certain amendments are being proposed to Section III of the Board Charter to reflect the adoption of the TC
OCC also proposes to amend the Fitness Standards to remove descriptions of the categories of directors represented on the Board and the process by which they are nominated for Board service as these descriptions are already maintained in Article III of OCC's By-Laws and the relevant Committee Charters. Eliminating these redundant descriptions in the Fitness Standards would promote efficiency and clarity by eliminating the need to ensure consistency of the same information across multiple documents. The proposed amendments would also underscore that the Fitness Standards are intended to facilitate the performance of OCC's role as a systemically important financial market utility.
OCC is proposing to make conforming amendments to the Committee Charters as a result of the Commission approving certain changes to the GNC Charter.
Furthermore, OCC proposes to delete a provision from each Committee Charter which granted the Chair of each Board Committee the authority to act on behalf of the respective Board Committee in situations in which immediate action was required and convening a Board Committee meeting was impractical. Although this provision also required each Chair to report such actions to the respective Board Committee for ratification as soon as practicable, OCC believes that removing this provision is appropriate from a governance perspective because it supports deliberation and action by a Board Committee as a whole rather than action by a Chair. In addition, historically, each Board Committee has been able to convene when necessary.
In addition, OCC is proposing a number of common changes across its Committee Charters to strengthen OCC's Board Committee governance framework and practices surrounding
Additionally, the Committee Charters would be amended to permit any Board Committee to engage specialists or advisors to assist it in carrying out its delegated responsibilities without prior Board approval. Generally speaking, Committees must obtain pre-approval from the Board to hire advisors. While not universal, OCC's understanding is that public company board committees frequently are authorized to engage advisors without board pre-approval at the company's expense to preserve autonomy and independence and to assist them in the execution of their responsibilities as deemed necessary. Under the proposed amendments, each Committee's engagement of an advisor, including fees and expenses, would be referenced in its annual report to the Board. These proposed amendments are intended to foster Committee independence as well as timely Committee access to expertise relevant to the discharge of its delegated responsibilities while preserving Board oversight via the application of existing reporting mechanisms.
OCC is also proposing amendments to its Committee Charters to specify that that [sic] each Committee should evaluate its and its individual member's performance on an annual basis (as opposed to regularly) to provide more clarity and specificity regarding the timing of each Committee's self-assessment process.
OCC proposes amendments to the AC Charter intended to, among other things: (i) Reinforce the independence of the AC; (ii) more accurately memorialize and expand upon the activities of the AC with respect to the oversight of OCC's financial reporting processes and enhance the independence and objectivity in connection therewith; and (iii) in general, provide more explicit descriptions of the AC's functions and responsibilities. The proposed changes are described in more detail below.
OCC proposes changes to Sections I, II and III of the AC Charter related to the purpose, membership and organization, and authority of the AC. In Section I of the AC Charter, OCC proposes to make organizational changes to certain statements regarding the AC's responsibility to serve as an independent and objective party to oversee OCC's system of internal control, compliance environment and processes. These changes are non-substantive in nature. OCC is also proposing to make various non-substantive clarifying and textual changes in Section I, including, for example, replacing the term “independent accountants” with “external auditors” and replacing “Corporation” with “OCC,” which would extend throughout the entire AC Charter. The proposed amendments to change “independent accountants” to “external auditors” are not intended to signify a change in roles or responsibilities but to more accurately state that the activities described in the AC Charter as being performed by “independent accountants” are actually performed by a party acting in its capacity as OCC's “external auditor.”
OCC also proposes amendments to Section II of the AC Charter that are intended to reinforce the independence of the AC. Specifically, the amendments provide that all members of the AC be independent from OCC's management, as determined by the Board from time to time, and that the Chair of the AC be a Public Director.
OCC also proposes to amend the AC Charter to provide that the AC shall make such reports to the Board as deemed necessary or advisable. This proposed change would promote effective communication between the AC and the Board is in line with requirements in other Committee Charters.
OCC proposes to amend Section III of the AC Charter to confirm that the AC's authority to hire advisors includes the authority to approve the related fee and retention terms.
OCC also proposes a number of amendments to Section IV of the AC Charter intended to reinforce and expand upon the activities of the AC with respect to the oversight of OCC's financial reporting processes, to enhance the independence and objectivity in connection therewith, and to more explicitly describe the AC's functions and responsibilities. These proposed amendments are described in more detail below.
OCC proposes amendments to the AC Charter regarding the AC's oversight of financial reporting and external auditors. The proposed amendments to the AC Charter are intended to more accurately memorialize and expand upon the AC's role with respect to financial reporting at OCC. With respect to financial statements and financial reporting, the proposed amendments explicitly state that the AC is responsible for: (i) Discussing with management and external auditors OCC's audited and unaudited financial statements; (ii) upon management's recommendation, approving OCC's financial statements after reviewing with management and external auditors prior to issuance;
Additionally, to improve the AC's oversight and evaluation of external auditors, OCC proposes amendments to the AC Charter to state that the AC is required to: (i) Discuss with management the timing and process for implementing a rotation of the engagement partner of the external auditor and any other active audit engagement team partner; (ii) monitor and evaluate the qualifications of both the external auditor and engagement partner; (iii) consider whether there should be a regular rotation of the audit firm itself; and (iv) pre-approve all services provided by the external auditor (as opposed to only non-audit services).
OCC is proposing to amend Section IV of the AC Charter in order to more clearly articulate the AC's responsibility for the oversight of Internal Audit. Specifically, OCC proposes amendments to state that the AC's responsibilities include reviewing and approving the Internal Audit Policy on an annual basis and monitoring ongoing internal audit activities. OCC also proposes amendments to state that the AC is responsible for approving OCC's annual internal audit plan and approving any CAE recommendations for removing or deferring any audits from a previously approved internal audit plan to explicitly codify these existing AC practices in the AC Charter. OCC believes that the AC, which serves as an independent and objective party tasked with the oversight of OCC's system of internal control, auditing, accounting, and compliance processes, is the appropriate body to approve OCC's internal audit plan and any CAE recommendations for removing or deferring any audits from a previously approved internal audit plan. The proposed amendments would provide more clarity and transparency regarding OCC's governance arrangements by codifying these responsibilities in the AC Charter.
OCC also proposes amendments to Section IV of the Charter to more clearly articulate the AC's responsibility for oversight of compliance and compliance-related matters, including: (i) Annually reviewing and approving OCC's Compliance Policy and employee Code of Conduct; (ii) reviewing and approving the Compliance Department's process for establishing the risk-based annual Compliance Testing Plan, monitoring progress against the annual Compliance Testing Plan, and approving changes to the Compliance Testing Plan recommend by the CCO; and (iii) monitoring ongoing compliance activities by reviewing reports and other communications prepared by the Compliance Department, including updates from the CCO, and inquiring of management regarding steps taken to address items raised.
In addition, OCC proposes amendments to clarify the AC's responsibilities with respect to: (i) Reviewing on a regular basis the significant deficiencies and material weaknesses in the design or operation of OCC's internal controls (as such issues are identified by or presented to the AC); (ii) reviewing fraud involving OCC's management or other employees; and (iii) reviewing and approving (as opposed to just establishing) OCC's “whistleblower” procedures that govern reporting of illegal or unethical conduct, accounting irregularities and similar matters and discussing any substantive issues identified through such procedures with relevant parties.
OCC proposes amendments to Section IV of the AC Charter to provide that the CAE and CCO would each report functionally to the AC and administratively to the Executive Chairman.
OCC is proposing changes to its CPC Charter to explicitly describe the Committee's functions and responsibilities with respect to OCC's human resources, compensation and employee benefit programs, and
OCC is proposing to rename the Performance Committee to the CPC in order to more accurately reflect its role. OCC is also proposing to amend Section I of the CPC Charter to more clearly articulate that the CPC is tasked with assisting the Board in the oversight of OCC's overall performance in promptly and accurately delivering clearance, settlement and other designated industry services and in the accomplishment of other periodically-established corporate goals and objectives in light of OCC's systemically important status. The CPC Charter would further delineate that the CPC is also tasked with (i) recommending the compensation of OCC's Executive Chairman and President and approving the compensation of certain other officers, as appropriate; (ii) overseeing OCC's Capital Plan and financial performance; (iii) overseeing OCC's Human Resources program; (iv) overseeing the structure and design of the employee compensation, incentive and benefit programs; and (v) assisting the Board in reviewing OCC's leadership development and succession planning.
Additionally, OCC proposes amendments to Section II of the CPC Charter related to the membership and organization of the CPC. Specifically, OCC proposes amendments to conform the CPC Charter to proposed Article III, Section 4(b) of OCC's By-Laws to state that the Chair of the CPC shall be a Public Director. In addition, OCC proposes changes to Section II of the CPC Charter to elaborate on the CPC's responsibility to discuss and review the performance and compensation levels (including benefits and perquisites such as sign-on bonuses, retention arrangements, relocation arrangements and other financial commitments of OCC) of members of the Management Committee and certain other key officers, as appropriate.
OCC also proposes administrative amendments to Section II to clarify that the CPC would meet at least four times per year, which reflects the minimum number of regular meetings in a year in a manner consistent with the charters of other Board Committees, and to delete a provision of the CPC Charter that requires the CPC Chair to meet in private session with the GNC Chair to discuss performance of key officers as well as a provision stating that the Chairs of the AC and RC would be invited to attend the annual meeting to discuss compensation of key officers, including the Chief Risk Officer (“CRO”) and CAE.
OCC also proposes an amendment to the CPC Charter under which attendance at a CPC meeting by telephone is discouraged. Attendance by telephone would be generally discouraged because OCC believes the Committee may be less likely to have the kind of interaction that leads to fully informed discussions and decisions than if Committee members were to meet in person. In addition, other clarifying and textual changes would be made including, for the reasons stated above, removal of references to the Management Vice Chairman.
Additionally, OCC proposes non-substantive organizational changes in Section III regarding the delegation of authority to the Administrative Committee that do not change the meaning of the rule text.
OCC is proposing amendments to Section IV of the CPC Charter to provide explicit descriptions of the Committee's responsibilities with respect to OCC's capital structure, financial planning and corporate goals and objectives; human resources and compensation programs; and employee benefits programs in order to provide a more robust framework for the CPC's oversight functions. The proposed changes are described in more detail below.
Additionally, OCC proposes to remove explicit requirements in Section IV that the CPC review the Corporate Plan and Budget and OCC's performance under the Corporate Plan at each regularly scheduled meeting in favor of more general descriptions regarding the CPC's responsibilities for the oversight of the corporate financial planning process, including the corporate budget, and corporate goals and objectives. The proposed amendments are intended to accommodate CPC review of annual Corporate Plans and Budgets and performance thereunder (as currently contemplated by the CPC Charter) as well as consideration of longer-term horizons and implications in the strategic planning process.
OCC proposes amendments to Section IV of the CPC Charter to explicitly provide for the CPC's responsibilities in connection with overseeing OCC's capital structure, financial planning, and corporate goals and objectives. Specifically, the proposed amendments would state that the CPC's responsibilities include oversight of management's processes for determining, monitoring and evaluating OCC's Capital Plan,
OCC proposes amendments to Section IV of the CPC Charter to explicitly state that the CPC's responsibilities include review of OCC's Human Resources programs and policies, including OCC's talent acquisition, performance management, training, benefits and succession planning processes and review and approval of the structure, design, and funding as applicable, of employee compensation, incentive and
Further, OCC is proposing amendments to the CPC Charter that would require the CPC to periodically (not less than annually) review and approve the general strategy, policies and programs with respect to salary compensation (including management compensation) and incentive compensation and seek to ensure compensation policies meet evolving compensation practices so that such policies remain effective to attract, motivate and retain executive officers and other key personnel. The proposed amendments would also require the CPC to review and approve the performance and compensation of key employees, such as members of OCC's Management Committee, at the end of each year and to make recommendations to the Board regarding the compensation of the Executive Chairman and the President. Additionally the proposed amendments would require the CPC to review proposed material changes to executive management benefits and to periodically review the compensation of Public Directors and make recommendations to the Board with respect thereto.
OCC proposes to remove from the CPC Charter certain statements regarding the review of OCC's performance under the Corporate Plan and the oversight of the administration of OCC's compensation plans as these responsibilities would be covered under the newly proposed descriptions contained therein. OCC believes that it is prudent and appropriate to provide for CPC oversight in the areas of human resources, performance, and compensation and that the proposed amendments will enhance OCC's overall governance arrangements with respect to the oversight and review of performance and compensation at OCC.
OCC also proposes amendments to Section IV of the CPC Charter related to the CPC's oversight responsibilities for employee benefit programs. Specifically, OCC would make amendments to the CPC Charter to specify the CPC's responsibilities for oversight, administration, and operation of employee benefit, retiree and welfare benefit plans, including the review of funding plan obligations. The proposed amendments also specify the scope of employee welfare plans that the CPC reviews and the CPC's right to adopt new compensation, retirement and welfare benefit plans or to terminate existing plans other than such plans that require Board action to amend or terminate. In addition, the proposed amendments would provide more clarity regarding the CPC's responsibilities for monitoring the Administrative Committee's duties in connection with retirement and retirement savings plans, investment strategy and performance, plan design and compliance, prudent selection of investment managers and compensation and benefits consultants, and performing such other oversight duties as called for in retirement, retirement and savings, and welfare plan documents.
OCC further proposes amendments that state that the CPC is responsible for providing updates to the Board periodically regarding: (i) Actions taken by the CPC with respect to its review of OCC's compensation, retirement and employee welfare plans; (ii) the financial position and performance of these plans; and (iii) adherence to investment guidelines, in each case, where applicable.
OCC is proposing amendments to its RC Charter which are primarily intended to enhance OCC's governance arrangements with respect to the RC's oversight functions and responsibilities. OCC also proposes amendments to better align the RC Charter with the OCC By-Laws, including changes in the composition requirements of the RC (as described above) and to reflect the adoption of the TC. The proposed changes are described as follows.
OCC proposes amendments to Section I of the RC Charter to provide that the RC would be responsible for coordinating risk oversight with other Board Committees tasked with overseeing certain risks (
In Section II of the RC Charter, OCC proposes amendments to provide that attendance at a RC meeting by telephone is discouraged. Attendance by telephone would be generally discouraged because OCC believes the Committee may be less likely to have the kind of interaction that leads to fully informed discussions and decisions than if Committee members were to meet in person. OCC also proposes to remove from the RC Charter, and by extension its rules, a requirement that a RC member shall recuse himself from any matter in which his firm has an interest, other than a common interest shared with Clearing Members generally or a particular class of Clearing Members. OCC believes that the identification and handling of conflicts of interest are already appropriately addressed in its Code of Conduct for OCC Directors,
With respect to RC meetings, OCC proposes amendments to state that the RC shall meet regularly, and no less than once annually, (rather than “at least annually”) with the CRO and members of management (as opposed to other appropriate corporate officers) in separate executive sessions to discuss certain private matters. The purpose of the proposed change is to signify that these meetings occur more frequently than once per year. The proposed changes would also more specifically require that the RC meet in executive session regularly with members of management. The RC would continue to have the discretion to invite any other officers it deems appropriate to meetings in executive session pursuant to the proposed common charter amendments described above. Moreover, and in order to enhance the independence and functional reporting relationship of the CRO to the RC, OCC
OCC also proposes to amend Section III of the RC Charter to provide that, in addition to RC subcommittees, the RC may also delegate authority to OCC's Management Committee or Enterprise Risk Management Committee. As described herein, the RC is responsible for assisting the Board in overseeing OCC's policies and processes for identifying and addressing strategic, operational, and financial risks and for overseeing the overall enterprise risk management framework implemented by management. The proposed amendment would allow the RC to delegate authority to the Management Committee and Enterprise Risk Management Committee to carry out certain tasks and responsibilities in the day-to-day risk management of OCC and to implement proposals that have been approved in concept by the RC where the RC deems such delegation of authority to be appropriate.
OCC proposes amendments to Section IV of the RC Charter to enhance its governance arrangements in connection with the oversight of membership requirements, margin requirements, the Enterprise Risk Management Program, and a number of other responsibilities.
OCC proposes amendments to the RC Charter to provide a broader description of the RC's oversight of the adequacy and effectiveness of OCC's framework for clearing membership. In general, these changes are not intended to substantively change or eliminate any of the RC's existing responsibilities with respect to its oversight of OCC's clearing membership framework and would continue to encompass the responsibilities currently enumerated in the charter.
In addition, OCC proposes to modify certain provisions related to the surveillance of Clearing Members and contingency planning for Clearing Member failures. Specifically, OCC proposes to consolidate these provisions to restate that the RC is responsible for the oversight of the adequacy and effectiveness of OCC's contingency plan for Clearing Member failures, including: (i) Reviewing Clearing Member surveillance criteria; (ii) overseeing the management processes for managing Clearing Members that are subject to closer than normal surveillance or are otherwise in or approaching financial or operational difficulty; (iii) imposing and modifying restrictions and requirements already imposed on Clearing Members in a manner consistent with the By-Laws and Rules;
OCC proposes similar amendments to the RC Charter to restate the RC's responsibilities in connection with its oversight of margin and clearing fund requirements. OCC proposes to remove certain existing provisions related to the oversight of margin and clearing fund requirements and replace them with a more high level description that would provide that the RC oversees OCC's processes for establishing, monitoring and adjusting margin consistent with the protection of OCC, Clearing Members, or the general public, including: (i) Reviewing and modifying OCC's margin formula, the methodologies used for determining margin and clearing fund requirements, and making recommendations to the Board, as applicable, in respect thereof;
OCC also proposes to delete a provision stating that the RC is responsible for making determinations regarding approval of non-U.S. institutions to issue letters of credit as a form of margin asset because this provision does not accurately reflect the RC's responsibilities. While the RC is responsible for overseeing standards used to admit non-U.S. institutions, OCC's President and Executive Chairman have general responsibility for approving financial institutions seeking to become non-U.S. letter of credit banks and that meet the requirements of OCC Rule 604, Interpretation and Policy .01 (with the exception of certain “equivalent country” and “equivalent institution” determinations that are required to be made by the RC pursuant to OCC Rule 604, Interpretations and Policies .01(b)(3) and .01(b)(4)(b)).
OCC proposes amendments to restate and expand upon the RC's responsibility for overseeing OCC's Enterprise Risk Management program. Currently, the RC is responsible for overseeing the structure, staffing and resources of the Enterprise Risk Management program, reviewing periodic reports regarding the Enterprise Risk Management program, and annually reviewing and assessing the overall program. OCC proposes amendments to the RC Charter that would restate these existing responsibilities and add new responsibilities designed to enhance the risk oversight framework for the Enterprise Risk Management program. Specifically, the proposed amendments would state that the RC is responsible for overseeing OCC's Enterprise Risk Management program, including (in addition to the existing responsibilities noted above), reviewing the systems and procedures that management has developed to manage the risks to OCC's business operations and regularly discussing these systems and procedures with management, reviewing with management the interrelated nature of OCC's risks, and annually approving the Enterprise Risk Management program's goals and objectives. OCC believes that explicitly incorporating these responsibilities into the RC Charter will provide for a more comprehensive oversight framework for the Enterprise Risk Management program.
OCC also proposes amendments to restate and expand upon the RC's responsibility for the oversight of OCC's risk appetite and risk tolerances. Currently, the RC Charter provides that the RC is responsible for reviewing and recommending for Board approval the OCC Risk Appetite Statement and reviewing and monitoring OCC's risk profile for consistency with OCC's Risk Appetite Statement. The proposed amendments to the RC Charter would state that, in addition to these responsibilities, the RC would be responsible for reviewing and monitoring determinations regarding appropriate risk tolerances, including reviewing with management on a regular basis management's view of appropriate risk tolerances and assessing whether this view is appropriate, and recommending risk tolerance parameters to the Board. OCC believes that explicitly incorporating these responsibilities into the RC Charter will provide for a more comprehensive oversight framework for OCC's risk appetite and risk tolerances.
Section I of the RC Charter currently provides that the RC is responsible for the oversight and review of material policies and processes relating to member and other counterparty risk exposure assessments. OCC proposes amendments to Section IV that would further specify that the RC oversees the adequacy and effectiveness of OCC's processes for setting, monitoring and acting on risk exposures to OCC presented by banks, depositories, financial market utilities and trade sources. OCC believes that the oversight of such risk exposures is critical to ensuring the safety and soundness of OCC and that specifically including this responsibility in the RC Charter will provide for greater clarity and transparency regarding the RC's role in overseeing these risks. Section I of the RC Charter also currently provides that the RC is responsible for the oversight and review of material policies and processes (i) for identifying liquidity risks and (ii) relating to liquidity requirements and the maintenance of financial resources. The proposed amendments to Section IV would further specify that the RC oversees the processes established by OCC for setting, monitoring and managing liquidity needs necessary for OCC to perform its obligations as a systemically important financial market utility. OCC believes that comprehensive oversight of liquidity risks and liquidity risk management is critical to ensuring the safety, soundness, and resilience of OCC and that providing more specificity regarding the RC's responsibilities with respect to liquidity risk will provide for greater clarity and transparency regarding the RC's role in such oversight. In addition, the RC Charter would be amended to provide that the RC and management would discuss on a regular basis the impact on systemic stability that may arise as a result of OCC's actions in responding to an extraordinary market event, including the impending or actual failure of a Clearing Member, and the development of strategies to mitigate these effects. OCC believes it is prudent for management and the RC to engage in regular discussions concerning OCC's actions in extreme market events and the potential impacts on systemic stability given OCC's role as a systemically important financial market utility.
OCC also proposes to elaborate on the statement that the RC would perform the responsibilities delegated to it by the Board under OCC's By-Laws and Rules by specifying that this would include the authorization of the filing of regulatory submissions pursuant to such delegation. Additionally, OCC proposes amendments to state that the RC would oversee management's responsibility for handling financial (
Further, the proposed amendments would specify that the RC oversees OCC's model risk management process, policies and controls, including: (i) Overseeing model risk governance; (ii) reviewing the findings of any third party engaged by management to evaluate OCC's risk models; and (iii) annually reviewing and approving the Model Validation Plan and receiving periodic reports thereunder. Moreover, the amendments would provide that the RC is responsible for reviewing the results
In order to conform the RC Charter to the GNC Charter and AC Charter, OCC proposes amendments to the RC Charter that would eliminate provisions under which the RC Chair attends the year-end CPC meeting to discuss the performance and compensation levels of the CRO. Rather, under the proposed amended RC Charter, the RC, in consultation with the Executive Chairman, would review the performance of the Enterprise Risk Management and Model Validation programs as well as the CRO and determine whether to accept or modify the Executive Chairman's recommendations with respect to the performance assessment and annual compensation for the CRO.
Further, the proposed amendments confirm that the RC has the responsibility for ratifying, modifying, or reversing action taken by OCC officers that have been delegated authority to consider requests by Clearing Members to expand clearing activities to include additional account types and/or products. Moreover, OCC proposes amendments to the RC Charter to clarify that the RC has the authority to authorize the filing of a regulatory submission pursuant to authority delegated to it by the Board.
OCC proposes amendments to the GNC Charter to reflect the elimination of term limits for Public Directors as discussed above and to state that attendance of GNC meetings by telephone is discouraged. Attendance by telephone would be generally discouraged because OCC believes the Committee may be less likely to have the kind of interaction that leads to fully informed discussions and decisions than if Committee members were to meet in person. OCC also proposes to delete a provision stating that a designated officer of management shall serve to assist the Committee and act as a liaison between staff and the Committee because OCC believes that experience has shown that designating a formal role for a liaison was unnecessary. Deleting this requirement would also maintain uniformity across all Committee Charters, as no other Committee has a formally designated liaison.
OCC also proposes amendments to the GNC Charter to specify that the Chair (or the Chair's designee) shall consult with the Corporate Secretary, in addition to management, to prepare an agenda in advance of each GNC meeting as the Corporate Secretary is responsible for coordinating the preparation and distribution of Board and Board Committee meeting agendas. In addition, OCC is proposing non-substantive drafting changes regarding: (i) The numbering of certain provisions in Section I of the GNC Charter and (ii) the requirements for GNC Committee reports to the Board in Section II of the Charter.
OCC is proposing amendments to its TC Charter to require that the Committee meet regularly, and no less than once annually, with OCC's Chief Security Officer (“CSO”) and to provide that the CSO is authorized to communicate with directly with [sic] the Chair of the TC in between meetings of the Committee in order to strengthen the autonomy and independence of the CSO role at OCC. OCC also proposes to amend the TC Charter to provide that the TC shall make such reports to the Board as deemed necessary or advisable. This proposed change would promote effective communication between the TC and the Board is in line with requirements in other Committee Charters. OCC also proposes non-substantive amendments to Section III of the TC Charter to eliminate a provision that referenced approval of non-audit services which appeared to be an inadvertent carry-over from the Audit Committee Charter and to Section IV of the Charter to change the term “the Company” to “OCC” and “Board of Directors” to “Board.”
OCC believes that the proposed rule change is consistent with Section 17A of the Act
OCC is proposing to amend its Certificate of Incorporation and By-Laws to modify the composition requirements for OCC's Board to require that only one Management Director shall serve on OCC's board. Currently, there is a vacancy for one Management Director position on the Board (OCC also notes that, prior to the addition of a second Management Director seat in 2013, OCC has historically had only one Management Director serving on its Board). OCC's Board continually evaluates the leadership structure at OCC, including the appropriate number of Management Directors for OCC's Board, and in light of recent experience with the current Management Director vacancy, the Board believes that amending the Board composition to require one Management Director would continue to provide an appropriate level of management representation in the Board-level oversight of OCC. The Executive Chairman, as Management Director, would continue to represent management's viewpoint on OCC's Board. Moreover, the Board has access to OCC's management team, which ensures that the Board has continued access to management's perspectives on the business and affairs of OCC. Accordingly, OCC believes that the proposed amendments to OCC's governance arrangements are designed,
OCC is also proposing to amend its By-Laws and Rules to eliminate the role of Management Vice Chairman. The office of Management Vice Chairman has been vacant for a number of years and has not been included in the Board's current discussions regarding management succession planning. OCC believes that the responsibilities of the Management Vice Chairman are appropriately handled by other officers of OCC (and are currently handled by such officers), primarily the Executive Chairman and President, or where applicable, other officers such as the Secretary or directors such as the Member Vice Chairman, and as a result, the title is being eliminated from OCC's By-Laws and Rules. OCC believes the proposed amendments would more accurately reflect the current state of affairs regarding the office of Member Vice Chairman, ensure consistency across all of OCC's governing documents, provide more clarity and transparency regarding OCC's intended governance arrangements, and continue to provide for appropriate and prudent governance arrangements at OCC. Accordingly, OCC believes the proposed amendments are designed in general, to protect investors and the public interest in accordance with Section 17A(b)(3)(F) of the Act
The proposed amendments to OCC's By-Laws also would require that the CPC and AC each be chaired by a Public Director, which will help to ensure the objectiveness and independence of those committees. It would also eliminate term limits for Public Directors, allowing OCC's Public Directors the time necessary to develop the particularized degree of knowledge and understanding of OCC's business to ensure that they are able to provide significant value in the governance process. OCC therefore believes that the proposed changes are designed, in general, to protect investors and the public interest in accordance with Section 17A(b)(3)(F) of the Act
In addition, the proposed rule change would require that at least one Exchange Director be a member of the RC and would reduce the minimum composition requirement for Member Directors on the RC to allow for greater flexibility in the selection of Directors with the requisite skills and expertise to serve on the RC. The addition of an Exchange Director to the RC will enhance the RC's oversight capabilities by providing additional expertise and unique perspectives on matters such as market risk as well as sophistication as to special risks arising from trading practices, strategies, and new products. Moreover, the reduction in the minimum number of Member Directors serving on the RC would provide OCC with greater flexibility to ensure that the RC is comprised of those Directors that have the appropriate mix of knowledge and expertise necessary to provide for the prudent oversight of risk matters at OCC. It would also continue to ensure the fair representation of Member Directors on OCC's RC as the minimum number Member Directors would be consistent with requirements that the Executive Chairman (as the lone Management Director), one Exchange Director, and at least one Public Director serve on the RC. OCC therefore believes that the proposed amendments are designed, and in general, to protect investors and the public interest in accordance with Section 17A(b)(3)(F) of the Act,
OCC is also proposing a number of other amendments to better align its By-Laws and Board and Board Committee Charters and to provide more clarity and transparency with respect to OCC's governance arrangements. In particular, OCC proposes amendments to Article IV, Section 7 to: (i) Delete a requirement that the Member Vice Chairman preside at the meetings of any committee of the Board charged with reviewing and evaluating the performance and compensation of officers as the CPC would now be chaired by a Public Director and (ii) clarify that the Member Vice Chairman would preside over meetings of the Board and stockholders in the absence of the Executive Chairman because the President cannot preside over meetings of the Board. OCC believes that the proposed changes would provide more clarity, transparency, and accuracy regarding its governance arrangements with respect to the responsibilities of the Member Vice Chairman and President and are therefore designed to ensure that OCC's governance arrangements are clear and transparent to fulfill the public interest requirements in Section 17A of the Act
The proposed rule change would amend the Board Charter, as described in detail above, to: (i) Harmonize the description of the Board's obligations in the Board Charter with the description of the Board's obligations in OCC's By-Laws and Rules; (ii) reflect recent changes involving Board Committee Charters; (iii) reflect recent changes to the Board's composition; and (iv) in general, restate the responsibilities of the Board in overseeing the management of the affairs of OCC in light of its role as a systemically important financial market utility. The proposed amendments would provide more clarity around the responsibilities of the Board, specifically with respect to its role in: (i) Overseeing management's activities in managing, operating and developing OCC, including the selection, oversight and replacement of key positions (
In addition, OCC proposes to amend the Board Charter to state that the Board is comprised of one Management Director, rather than two Management Directors, in conformance with the proposed amendments to the Certificate of Incorporation and By-Laws described above. OCC also proposes amendments to the Fitness Standards to remove redundant descriptions of Board composition and the nomination process and to underscore that the Fitness Standards are intended to facilitate the performance of OCC's role as a systemically important financial market utility. OCC believes that the proposed changes provide additional clarity and transparency regarding its governance arrangements and are therefore designed to ensure that OCC's governance arrangements are clear and transparent to fulfill the public interest requirements in Section 17A of the Act
Additionally, OCC proposes amendments that would allow for additional meetings of the Board to be called as the Board deems appropriate (such meetings being be called by the Executive Chairman or his designee), which will provide the Board with increased flexibility in performing its oversight functions. Accordingly, OCC believes the proposed amendments to its governance arrangements are designed, in general, to protect investors and the public interest in accordance with Section 17A(b)(3)(F) of the Act
OCC is proposing to make a number of common amendments to the Committee Charters as a result of the Commission approving certain changes to the GNC Charter.
In addition, OCC is proposing a number of common changes across its Committee Charters to strengthen OCC's Board Committee governance framework and practices surrounding meetings in executive sessions by providing added structure regarding the convening and attendance of executive sessions (and specifically requiring that each Committee meet in executive session at each regular meeting of the Committee) and by promoting the enhanced recordation of important meeting events and discussions by requiring that each Committee's meeting minutes reflect, at a minimum, that an executive session was convened and broadly describe the topic(s) discussed. OCC believes that meetings in executive session are an important tool for Board Committees to discuss matters of a sensitive nature or for which certain persons may have conflicts of interest; however, OCC also believes that it is important that these sessions be documented, at least in summary fashion, in the interest of transparency. OCC therefore believes the proposed amendments providing for added structure regarding the convening, attendance, and recordation of executive sessions are designed, in general, to protect investors and the public interest in accordance with Section 17A(b)(3)(F) of the Act
Additionally, the Committee Charters would be amended to permit any Board Committee to engage specialists or advisors to assist it in carrying out its delegated responsibilities without requiring pre-approval from the Board. Under the proposed amendments, each Committee's engagement of an advisor, including fees and expenses, would be referenced in its annual report to the Board. These proposed amendments are intended to foster Committee independence as well as timely Committee access to expertise relevant to the discharge of its delegated responsibilities while preserving Board oversight via the application of existing reporting mechanisms. Accordingly, OCC believes that the proposed amendments are designed, in general, to protect investors and the public interest in accordance with Section 17A(b)(3)(F) of the Act
OCC is also proposing amendments to its Committee Charters to specify that that [sic] each Committee should evaluate its and its individual member's performance on an annual basis (as opposed to regularly) to provide more clarity and specificity regarding the timing of each Committee's self-
The proposed amendments to the AC Charter are designed to: (i) Underscore the independence of the AC; (ii) underscore and expand upon the activities of the AC with respect to the oversight of OCC's financial reporting processes and enhance the independence and objectivity in connection therewith; (iii) promote effective communication between the CAE, CCO, CFO and the AC and between the AC and the Board; and (iv) in general, provide more explicit descriptions of the AC's functions and responsibilities. Specifically, the proposed changes would underscore the independence of the AC by providing that all members of the AC be independent from OCC's management, as determined by the Board from time to time; that the Chair of the AC be a Public Director; and clarify that the Management Director is ineligible to serve on the AC. The proposed changes would also require the AC to meet regularly, and no less than once annually, (as opposed to at least annually) with management, the CAE, CCO, and CFO in executive sessions to discuss certain private matters and provide the authority for the CAE and CCO to communicate directly with the Chair of the AC with respect to any of the responsibilities of the AC outside of regular meetings to further underscore the independence these roles at OCC. In addition, the proposed changes underscore and expand upon the AC's oversight role in connection with OCC's financial reporting processes, enhance the independence and objectivity in connection therewith, and more explicitly describe the AC's functions and responsibilities with respect to its oversight of external auditors as well as OCC's internal audit and compliance functions (as described in detail above). The proposed amendments would also provide that the AC shall make such reports to the Board as deemed necessary or advisable.
OCC believes that by underscoring and reinforcing the independence of the AC in OCC's governance framework, promoting effective communication between certain officers, the AC, and the Board, and providing further clarity around the AC's functions and responsibilities, the proposed changes are reasonably designed to ensure that OCC's governance arrangements with respect to the role of the AC are designed to protect investors and the public interest in accordance with Section 17A(b)(3)(F) of the Act
OCC proposes amendments to the CPC Charter intended to more clearly articulate that the CPC is tasked with assisting the Board in the oversight of OCC's overall performance in promptly and accurately delivering clearance, settlement and other designated industry services and in the accomplishment of other periodically-established corporate goals and objectives in light of OCC's systemically important status. The proposed amendments would provide a more robust framework for the CPC's oversight functions by clearly stating the CPC's role in: (i) Recommending the compensation of OCC's Executive Chairman and President and approving the compensation of certain other officers, as appropriate; (ii) overseeing OCC's Capital Plan, capital structure, financial planning and corporate goals and objectives; (iii) overseeing OCC's Human Resources program; (iv) overseeing the structure and design of the employee compensation, incentive and benefit programs; and (v) assisting the Board in reviewing OCC's leadership development and succession planning. Accordingly, OCC believes that the proposed changes to the CPC Charter are reasonably deigned [sic] to ensure that OCC's governance arrangements with respect to the CPC are designed to protect investors and the public interest in accordance with Section 17A(b)(3)(F) of the Act
OCC proposes amendments to its RC Charter primarily intended to better align the RC Charter with the OCC By-Laws (including, for example, changes in the composition requirements of the RC and to reflect the adoption of the TC), to restate and elaborate on the responsibilities of the RC, and to replace more granular descriptions with general statements regarding the RC's functions and responsibilities, as described in detail above. In particular, the amendments would restate and expand on the RC's functions and responsibilities with respect to the oversight of membership requirements, margin requirements, the Enterprise Risk Management Program, and OCC's risk appetite and risk tolerances. The proposed amendments also elaborate on the RC's role in overseeing the adequacy and effectiveness of OCC's processes for setting, monitoring and acting on risk exposures to OCC presented by banks, depositories, and financial market utility counterparties and the processes established by OCC for setting, monitoring and managing liquidity needs necessary for OCC to perform its obligations as a systemically important financial market utility. Additionally, in recognition of OCC's role as a systemically important financial market utility, the RC Charter would provide that the RC and management would discuss on a regular basis the impact on systemic stability that may arise as a result of OCC's actions in responding to an extraordinary market event, including the impending or actual failure of a clearing member, and the development of strategies to mitigate these effects. OCC believes that the proposed amendments to the RC Charter provide for comprehensive and robust governance arrangements with respect to the RC's oversight role at OCC and are therefore designed to promote the prompt and accurate clearance and settlement of securities transactions, to assure the safeguarding of securities and funds, and in general, to protect investors and the public interest in accordance with Section 17A(b)(3)(F) of the Act
Additionally, OCC proposes to delete an existing RC Charter provision specifically requiring the RC to periodically review and modify the inputs to OCC's margin formula and would amend the RC Charter to state that the RC is generally responsible for overseeing the processes established for establishing, monitoring and adjusting margin consistent with the protection of OCC, Clearing Members, or the general public, including reviewing and modifying OCC's margin formula. OCC believes that the proposed amendments continue to provide an adequate and appropriate oversight framework for the monitoring and development of OCC's margin formula and would provide the RC with the continued authority to modify margin formula inputs if it deems such modification to be appropriate. OCC also proposes to delete a provision stating that the RC is responsible for making determinations regarding the approval of non-U.S. institutions to issue letters of credit as a form of margin asset because this provision does not accurately reflect the RC's responsibilities. Accordingly, OCC believes that the proposed changes are reasonably designed to be clear and transparent to promote the effectiveness of the clearing agency's risk management procedures as required under Rule 17Ad-22(d)(8).
In addition, OCC proposes amendments to state that the RC shall meet regularly, and no less than once annually, (rather than “at least annually”) with the CRO and members of management (as opposed to other appropriate corporate officers) in separate executive sessions to discuss certain private matters to provide more specificity regarding the frequency of these meetings (
Finally, OCC proposes to remove from the RC Charter certain mandatory recusal requirements designed to apply to Member Directors of the RC. OCC believes that the identification and handling of conflicts of interest are already appropriately addressed in its Code of Conduct for OCC Directors, which is a publicly available document that governs the conduct of all directors equally regardless of category or committee assignment. Furthermore, as discussed above, OCC's Directors have a fiduciary duty under Delaware law to protect the interests of the corporation and to act in the best interests of its shareholders and are bound by a duty of loyalty to OCC, which demands that there be no conflict between duty and self-interest and that the best interest of the corporation and its shareholders takes precedence over any interest possessed by a director. OCC believes that this specific recusal requirement contained in the RC charter is unnecessary in light of the existing requirements under Delaware law and OCC's Code of Conduct for OCC Directors. Accordingly, OCC believes that its governance arrangements with respect to conflicts of interest for RC members continue to be designed, in general, to protect investors and the public interest in accordance with Section 17A(b)(3)(F) of the Act
OCC proposes amendments to the GNC Charter to reflect the elimination of term limits for Public Directors as discussed above, to state that attendance of GNC meetings by telephone is discouraged, and to delete a provision stating that a designated officer of management shall serve to assist the Committee and act as a liaison between staff and the Committee. The proposed amendments are primarily intended to conform the GNC Charter with proposed changes to the By-Laws and existing practices contained in other Committee Charters and would continue to provide for appropriate governance arrangements with respect to the GNC's oversight role. OCC therefore believes the proposed changes are reasonably designed to ensure that OCC's governance arrangements are clear and transparent to fulfill the public interest requirements of Section 17A of the Act
OCC is proposing amendments to its TC Charter to require that the Committee meet regularly, and no less than once annually, with OCC's CSO and to provide that the CSO is authorized to communicate with directly with [sic] the Chair of the TC in between meetings of the Committee. OCC also proposes to amend the TC Charter to provide that the TC shall make such reports to the Board as deemed necessary or advisable. The proposed amendments are designed to strengthen the autonomy and independence of the CSO role at OCC and to promote effective communication between the CSO and the TC and between TC and the Board and are in line with requirements in other Committee Charters. OCC therefore believes the proposed amendments are designed to protect investors and the public interest in accordance with Section 17A(b)(3)(F) of the Act
OCC also proposes to adopt Amendment No. 1 to Amended and Restated Stockholders Agreement in order to provide for Board action in the nomination process for Member Directors, Public Directors, the Executive Chairman and Member Vice Chairman in conformance with the process set forth in the GNC Charter. The proposed change would ensure an appropriate level of Board oversight and participation in the nomination process and provide consistency between the processes described in the GNC Charter and Amended and Restated Stockholders Agreement thereby ensuring that OCC's governance
OCC does not believe that the proposed rule change would have any impact or impose any burden on competition.
For the foregoing reasons, OCC believes that the proposed rule change is in the public interest, would be consistent with the requirements of the Act applicable to clearing agencies, and would not have any impact or impose a burden on competition.
Written comments on the proposed rule change were not and are not intended to be solicited with respect to the proposed rule change and none have been received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) for an exemption from sections 12(d)(1)(A) and 12(d)(1)(B) of the Act. The requested order would permit (a) index-based series of certain open-end management investment companies (“Funds”) to issue shares redeemable in large aggregations only (“Creation Units”); (b) secondary market transactions in Fund shares to occur at negotiated market prices rather than at net asset value (“NAV”); (c) certain Funds to pay redemption proceeds, under certain circumstances, more than seven days after the tender of shares for redemption; (d) certain affiliated persons of a Fund to deposit securities into, and receive securities from, the Fund in connection with the purchase and redemption of Creation Units; and (e) certain registered management investment companies and unit investment trusts outside of the same group of investment companies as the
CSat Investment Advisory, L.P. (“CSat”), a Delaware limited partnership registered as an investment adviser under the Investment Advisers Act of 1940, ETF Series Solutions (“Trust”), a Delaware statutory trust registered under the Act as an open-end management investment company with multiple series, and Quasar Distributors, LLC (“Distributor”), a Delaware limited liability company and broker-dealer registered under the Securities Exchange Act of 1934 (“Exchange Act”).
The application was filed on May 11, 2016.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on August 23, 2016, and should be accompanied by proof of service on applicants, in the form of an affidavit, or for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants: CSAT: 625 Avis Drive, Ann Arbor, MI 48108; The Trust and the Distributor: Michael Barolsky, Esq., 615 East Michigan Street, 4th Floor, Milwaukee, WI 53202.
Jean E. Minarick, Senior Counsel, at (202) 551-6811, or Daniele Marchesani, Branch Chief, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. Applicants request an order that would allow Funds to operate as index exchange traded funds (“ETFs”).
2. Each Fund will hold investment positions selected to correspond generally to the performance of an Underlying Index. In the case of Self-Indexing Funds, an affiliated person, as defined in section 2(a)(3) of the Act (“Affiliated Person”), or an affiliated person of an Affiliated Person (“Second-Tier Affiliate”), of the Trust or a Fund, of the Adviser, of any sub-adviser to or promoter of a Fund, or of the Distributor will compile, create, sponsor or maintain the Underlying Index.
3. Shares will be purchased and redeemed in Creation Units and generally on an in-kind basis. Except where the purchase or redemption will include cash under the limited circumstances specified in the application, purchasers will be required to purchase Creation Units by depositing specified instruments (“Deposit Instruments”), and shareholders redeeming their shares will receive specified instruments (“Redemption Instruments”). The Deposit Instruments and the Redemption Instruments will each correspond pro rata to the positions in the Fund's portfolio (including cash positions) except as specified in the application.
4. Because shares will not be individually redeemable, applicants request an exemption from section 5(a)(1) and section 2(a)(32) of the Act that would permit the Funds to register as open-end management investment companies and issue shares that are redeemable in Creation Units only.
5. Applicants also request an exemption from section 22(d) of the Act and rule 22c-1 under the Act as secondary market trading in shares will take place at negotiated prices, not at a current offering price described in a Fund's prospectus, and not at a price based on NAV. Applicants state that (a) secondary market trading in shares does not involve a Fund as a party and will not result in dilution of an investment in shares, and (b) to the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants represent that share market prices will be disciplined by arbitrage opportunities, which should prevent shares from trading at a material discount or premium from NAV.
6. With respect to Funds that effect creations and redemptions of Creation Units in kind and that are based on certain Underlying Indexes that include foreign securities, applicants request relief from the requirement imposed by section 22(e) in order to allow such Funds to pay redemption proceeds within fifteen calendar days following the tender of Creation Units for redemption. Applicants assert that the requested relief would not be inconsistent with the spirit and intent of section 22(e) to prevent unreasonable, undisclosed or unforeseen delays in the actual payment of redemption proceeds.
7. Applicants request an exemption to permit Funds of Funds to acquire Fund shares beyond the limits of section 12(d)(1)(A) of the Act; and the Funds, and any principal underwriter for the Funds, and/or any broker or dealer registered under the Exchange Act, to sell shares to Funds of Funds beyond the limits of section 12(d)(1)(B) of the Act. The application's terms and conditions are designed to, among other things, help prevent any potential (i) undue influence over a Fund through control or voting power, or in connection with certain services, transactions, and underwritings, (ii) excessive layering of fees, and (iii) overly complex fund structures, which are the concerns underlying the limits in sections 12(d)(1)(A) and (B) of the Act.
8. Applicants request an exemption from sections 17(a)(1) and 17(a)(2) of the
9. Section 6(c) of the Act permits the Commission to exempt any persons or transactions from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to clarify the operation of the Regulation NMS Plan to Address Extraordinary Volatility (“Plan”) following a Trading Pause or Regulatory Halt in a security subject to the Plan.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA Rule 6121.01 (Trading Pauses) (“Rule”) sets forth requirements applicable to member firms in connection with Trading Pauses.
FINRA and other self-regulatory organizations (SROs) are taking measures to clarify the operation of the Plan that results from the short period of time (generally up to three milliseconds) following the resumption of trading after a Trading Pause or Regulatory Halt and before the Price Bands are received from the Processor for securities that are subject to the
The proposed rule change also clarifies what activity is permitted around the resumption of trading following a Trading Pause. Previously, the Rule provided that FINRA may permit the resumption of trading following a Trading Pause if trading has resumed on any national securities exchange. FINRA is revising the Rule to provide that members may resume trading following a Trading Pause if trading has resumed on the Primary Listing Exchange or, where the Primary Listing Exchange does not reopen for trading at the end of a ten-minute Trading Pause (and has issued notice that it cannot resume trading for a reason other than a significant imbalance), a member may resume trading otherwise than on an exchange if trading has commenced in such NMS Stock on at least one other national securities exchange.
Thus, the proposed amendment addresses the brief time between the resumption of trading following a Trading Pause or Regulatory Halt and when the Price Bands are received from the Processor by requiring members to take measures to ensure bands are in place (either by waiting for the receipt of the Price Bands from the Processor or calculating an interim upper price band and lower price band and ensuring that trades occur within those bands). Members may not rely on interim bands beyond the short period of time (generally up to three milliseconds) between the resumption of trading and the receipt of Price Bands by market participants.
FINRA has filed the proposed rule change for immediate effectiveness. The operative date of the proposed rule change will be August 22, 2016.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
The proposed rule change is designed to better implement the goals of the Plan, which has been approved by the Commission as reasonably designed to prevent potentially harmful price volatility, including severe volatility of the kind that occurred on May 6, 2010. In clarifying the operation of the Plan, the proposed rule change seeks to help ensure that the goals of the Plan are met. Accordingly, FINRA believes that the proposed rule change will further the goals of investor protection and fair and orderly markets.
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change seeks to require members to take measures to ensure that their trading activity is in compliance with FINRA Rule 6190 and the Plan, and does not impose requirements that do not currently exist under FINRA rules, FINRA guidance and the Plan.
Specifically, a member that is a Trading Center in an NMS Stock already is required to establish, maintain and enforce written policies and procedures that are reasonably designed to comply with the requirements of the Plan, including to prevent the execution of trades at prices that are outside of the Price Bands. To comply with this requirement, members must be aware of the upper and lower price bands applicable to their trading activity. This proposal provides that, immediately following a halt of a security subject to the Plan, a member may not resume trading until trading has resumed on the primary listing exchange (or on another national securities exchange in the case of the resumption of trading following a ten-minute pause) and either the member has received the Price Bands from the processor or has established interim bands calculated in compliance with the Plan.
Written comments were neither solicited nor 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) 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 necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule 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.
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to list and trade under NYSE Arca Equities Rule 5.2(j)(3), Commentary .02, the shares of the Direxion Daily Municipal Bond Taxable Bear 1X Fund. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade shares (“Shares”) of the Direxion Daily Municipal Bond Taxable Bear 1X Fund (“Fund”) under NYSE Arca Equities Rule 5.2(j)(3), Commentary .02, which governs the listing and trading of Investment Company Units (“Units”) based on fixed income securities indexes.
Bank of New York Mellon will serve as transfer agent, accounting agent and custodian for the Fund (“Transfer Agent”). Foreside Fund Services, LLC will be the distributor (“Distributor”) for the Fund's Shares. U.S. Bancorp Fund Services, LLC will serve as the Fund's administrator.
According to the Registration Statement, the Fund will seek to track 100% of the inverse of the performance of a benchmark index that measures the investment-grade segment of the U.S. municipal bond market. The Fund, under normal circumstances,
The Fund may invest in options that provide short exposure to the Index or various ETFs including, iShares National Muni Bond ETF, SPDR Nuveen Barclays Municipal Bond ETF, iShares Short-term National Muni Bond ETF, SPDR Nuveen Barclays Short-Term Municipal Bond ETF, Market Vectors High-Yield Municipal Index ETF, SPDR Nuveen S&P High Yield Municipal Bond ETF, Market Vectors AMT-Free Intermediate Municipal Index ETF, PowerShares National AMT-Free Municipal Bond Portfolio, Vanguard Tax-Exempt Bond ETF and the PIMCO Intermediate Municipal Bond Active Exchange-Traded Fund.
The Fund may invest in swaps that provide short exposure to the securities included in the Index and various ETFs, including iShares National Muni Bond ETF, SPDR Nuveen Barclays Municipal Bond ETF, iShares Short-term National Muni Bond ETF, SPDR Nuveen Barclays Short-Term Municipal Bond ETF, Market Vectors High-Yield Municipal Index ETF, SPDR Nuveen S&P High Yield Municipal Bond ETF, Market Vectors AMT-Free Intermediate Municipal Index ETF, PowerShares National AMT-Free Municipal Bond Portfolio, Vanguard Tax-Exempt Bond ETF and the PIMCO Intermediate Municipal Bond Active Exchange-Traded Fund.
The Fund may take direct short positions in ETFs, such as the iShares National Muni Bond ETF, SPDR Nuveen Barclays Municipal Bond ETF, iShares Short-term National Muni Bond ETF, SPDR Nuveen Barclays Short-Term Municipal Bond ETF, Market Vectors High-Yield Municipal Index ETF, SPDR Nuveen S&P High Yield Municipal Bond ETF, Market Vectors AMT-Free Intermediate Municipal Index ETF, PowerShares National AMT-Free Municipal Bond Portfolio, Vanguard Tax-Exempt Bond ETF and the PIMCO Intermediate Municipal Bond Active Exchange-Traded Fund.
The Fund has proposed to use the Index as its benchmark index.
The Fund may gain inverse exposure to only a representative sample of the securities in the Index that have aggregate characteristics similar to those of the Index. The Fund will gain this inverse exposure by investing in a combination of financial instruments that provide inverse exposure to the underlying securities of the Index. The Fund will invest in derivatives as a substitute for directly shorting securities in order to gain inverse exposure to the Index or its components. The Fund will seek to remain fully invested at all times consistent with its stated investment objective. At the close of the markets each trading day, the Adviser will position the Fund's portfolio so that its exposure to the Index is consistent with the Fund's investment objective. The impact of the Index's movements during
According to the Registration Statement, because of daily rebalancing and the compounding of each day's return over time, the return of the Fund for periods longer than a single day will be the result of each day's returns compounded over the period, which will very likely differ from −100% of the return of the Index over the same period.
While under normal circumstances, at least 80% of the Fund's assets will be invested in Financial Instruments to establish net short positions, as described above, the Fund's remaining assets may be used to invest in cash and the following cash equivalents (in addition to cash or cash equivalents used to collateralize the Fund's investments in Financial Instruments): Money market funds, depository accounts with institutions with high quality credit ratings, U.S. government securities that have terms-to-maturity of less than 397 days and repurchase agreements that have terms-to-maturity of less than 397 days.
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including securities deemed illiquid by the Adviser, consistent with Commission guidance. The Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of the Fund's net assets are held in illiquid assets. Illiquid assets include securities subject to contractual or other restrictions on resale and other instruments that lack readily available markets as determined in accordance with Commission staff guidance.
The Fund is classified as diversified within the meaning of the 1940 Act.
The Fund intends to maintain the required level of diversification and otherwise conduct its operations so as to qualify as a “regulated investment company” for purposes of the Internal Revenue Code of 1986.
The Exchange is submitting this proposed rule change because the Index for the Fund does not meet all of the “generic” listing requirements of Commentary .02(a) to NYSE Arca Equities Rule 5.2(j)(3) applicable to the listing of Units based on fixed income securities indexes. The Index meets all such requirements except for those set forth in Commentary .02(a)(2).
As of May 23, 2016, 95.87% of the weight of the Index components was composed of individual maturities that were part of an entire municipal bond offering with a minimum original principal amount outstanding of $100 million or more for all maturities of the offering. In addition, as of May 23, 2016, the total dollar amount outstanding of issues in the Index was approximately $248 billion and the average dollar amount outstanding of issues in the Index was approximately $81 million. Further, as of May 23, 2016, the most heavily weighted component represents 0.43% of the weight of the Index and the five most heavily weighted components represent 1.88% of the weight of the Index.
Therefore, the Exchange believes that, notwithstanding that the Index does not satisfy the criterion in NYSE Arca Equities Rule 5.2(j)(3), Commentary .02 (a)(2), the Index is sufficiently broad-based to deter potential manipulation, given that it is composed of approximately 3,063 issues and 474 unique issuers. In addition, the Index securities are sufficiently liquid to deter potential manipulation in that a substantial portion (95.87%) of the Index weight is composed of maturities that are part of an entire municipal bond offering with a minimum original principal amount outstanding of $100 million or more, and in view of the substantial total dollar amount outstanding and the average dollar amount outstanding of Index issues, as referenced above.
All statements and representations made in this filing regarding (i) the description of the portfolio, (ii) limitations on portfolio holdings or reference assets or (iii) the applicability of Exchange rules and surveillance procedures shall constitute continued listing requirements for listing the Shares on the Exchange.
The issuer has represented to the Exchange that it will advise the Exchange of any failure by the Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements. If the Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Equities Rule 5.5(m).
The NAV of Shares, under normal market conditions, will be calculated each day that the New York Stock Exchange (“NYSE”) is open for business except for days on which the U.S. municipal bond markets are closed. The NAV will be calculated on each such day as of the close of the NYSE, which is typically 4:00 p.m. Eastern Time (“E.T.”). On days that the U.S. municipal bond markets close early, the NAV will be calculated as of the recommended closing time for the bond markets, which may be before 4:00 p.m. E.T., subject to the discretion of the Adviser.
For purposes of calculating NAV, the Fund will value its assets on the basis of market quotations, last sale prices or estimates of value furnished by pricing services or brokers who make markets in such instruments. If such information is not available for a security or instrument held by a Fund, if such information is determined to be unreliable by the Adviser, if the Adviser determines that the market price is stale or if, to the Adviser's knowledge, such information does not reflect a significant event occurring after the close of the market on which the security principally trades but prior to the time at which the Fund calculates the NAV, the security will be valued at fair value estimates by the Adviser pursuant to policies and procedures established by the Board of Trustees (“Board”). The Fund may also establish fair value for an instrument if trading in a particular instrument is halted and trading does not resume prior to the closing of the relevant exchange or market. If a reliable market quotation becomes available for a security formerly valued through fair valuation techniques, the Adviser will compare the market quotation to the fair value price to evaluate the effectiveness of the Fund's fair valuation procedures and will use that market value in the next calculation of NAV.
If no last sale is reported on an exchange, the mean of the last bid and last offer prices will be used. Securities that are primarily traded on the NASDAQ Global Market (“NASDAQ”) for which market quotations are readily available shall be valued using the NASDAQ Official Closing Price. If the NASDAQ Official Closing Price is not available, such securities shall be valued at the last sale price on the day of valuation, or if there has been no sale on such day, at the mean between the last bid and last sale prices.
Options will be valued at the last sales price of the respective exchange on which they trade. If there have been no trades for an option on that trading day, then the option will be valued at the mean of the last bid and ask quotations.
Swaps will be valued based upon prices from third party vendor models or quotations from market makers to the extent available.
Repurchase agreements will be valued on the basis of broker quotes or valuations provided by a third party pricing service, which in determining value utilizes information regarding recent sales, market transactions in comparable securities, quotations from dealers and various relationships between securities.
Short-term debt instruments having a remaining maturity of 60 days or less will be valued at amortized cost, which approximates market value. If the Board determines that the amortized cost method does not represent the fair value of the short-term debt instrument, the investment will be valued at fair value as determined by policies and procedures adopted by the Board. Debt instruments with a maturity of greater than 60 days (other than U.S. government securities with maturities of greater than 60 days) will be valued at prices that reflect broker/dealer supplied valuations or are obtained from independent pricing services, which may consider the trade activity, treasury spreads, yields or price of bonds of comparable quality, coupon, maturity and type, as well as prices quoted by dealers who make markets in such securities.
Money market funds and depository accounts will be valued at NAV.
U.S. government securities with maturities of greater than 60 days will be valued at the mean of the closing bid price and offer price provided by an independent third-party pricing service.
Securities and other assets for which market quotations are not readily available, or for which the Adviser has reason to question the validity of quotations received, will be valued at fair value in accordance with policies and procedures adopted by the Board.
In order to provide additional information regarding the intraday value of Shares of the Fund, the NYSE Arca or a market data vendor or other information providers will disseminate every 15 seconds an updated Intraday Indicative Value (“IIV”) for the Fund as calculated by a third party market data provider.
A third party market data provider will calculate the IIV for the Fund. The third party market data provider may use market quotes if available or may fair value securities against proxies (such as swap or yield curves). Swaps will be valued intraday based on the value of the reference assets as determined by a third-party market data provider. U.S. exchange-listed options may be valued intraday using the relevant exchange data, or another proxy as determined to be appropriate by the third party market data provider.
The Trust will issue and sell Shares only in aggregations of “Creation Units” on a continuous basis through the Distributor, without a sales load, at their NAV next determined after receipt, on any business day, of an order in proper form received by the Distributor by 4:00 p.m. E.T. on any day that the NYSE is open for business except for days on which the U.S. municipal bond markets are closed. The number of Shares that constitute a Creation Unit will be 50,000 Shares and the value of such Creation Unit will be $1.25 million USD. The size of a Creation Unit is subject to change.
Creation Units of Shares may be purchased only by or through an “Authorized Participant.”
Purchase orders will be processed either through a manual clearing process (“Manual Clearing Process”) run at the Depository Trust Company (“DTC”) or through an enhanced clearing process (“Enhanced Clearing Process”) that is available only to those DTC participants that also are participants in the Continuous Net Settlement System of NSCC.
Shares may be redeemed only in Creation Units at their NAV next determined after receipt of a redemption request in proper form by the Distributor on any business day. A redemption order must be received in good order by the Transfer Agent by 4:00 p.m. E.T. on any day that the NYSE is open for business except for days on which the U.S. municipal bond markets are closed in order to receive the NAV determined on that day.
Orders to redeem Creation Units of the Fund using the Enhanced Clearing Process must be delivered through a DTC participant that has executed the Authorized Participant Agreement and has the ability to transact through the Federal Reserve System. A DTC participant who wishes to place a redemption order need not be an Authorized Participant, but such redemption orders must state that the DTC Participant is not using a clearing process and that redemption of Creation Units will instead be effected through the Manual Clearing Process (for cash and U.S. government securities). The order must be accompanied or preceded by the requisite number of Shares specified in such order, which delivery must be made through DTC or the
The redemption proceeds for a Creation Unit of the Fund will consist solely of cash in an amount equal to the NAV of the Shares being redeemed, as next determined after a receipt of a request in proper form, less the redemption transaction fee.
The right of redemption may be suspended or the date of payment postponed with respect to the Fund (1) for any period during which the NYSE is closed (other than customary weekend and holiday closings); (2) for any period during which trading on the NYSE is suspended or restricted; (3) for any period during which an emergency exists as a result of which disposal of the Shares of the Fund's portfolio securities or determination of its net asset value is not reasonably practicable; or (4) in such other circumstance as is permitted by the Commission.
The Exchange represents that: (1) Except for Commentary .02(a)(2) to NYSE Arca Equities Rule 5.2(j)(3), the Shares of the Fund currently satisfy all of the generic listing standards under NYSE Arca Equities Rule 5.2(j)(3); (2) the continued listing standards under NYSE Arca Equities Rules 5.2(j)(3) and 5.5(g)(2) applicable to Units shall apply to the Shares; and (3) the Trust is required to comply with Rule 10A-3 under the Act
The current value of the Index will be widely disseminated by one or more major market data vendors at least once per day, as required by NYSE Arca Equities Rule 5.2(j)(3), Commentary .02(b)(ii). The IIV for Shares of the Fund will be disseminated by one or more major market data vendors, updated at least every 15 seconds during the Exchange's Core Trading Session, as required by NYSE Arca Equities Rule 5.2(j)(3), Commentary .02(c).
The Index value, calculated and disseminated at least once daily, as well as the components of the Index and their percentage weighting, will be available from major market data vendors. In addition, as disclosed in the Registration Statement, the portfolio of securities held by the Fund will be disclosed daily on the Fund's Web site at
The Fund's Web site (
On each business day, before commencement of trading in Shares in the Core Trading Session on the Exchange, the Trust will disclose on its Web site the following information regarding each portfolio holding, as applicable to the type of holding: Ticker symbol, CUSIP number or other identifier, if any; a description of the holding (including the type of holding, such as the type of swap); the identity of the security, index or other asset or instrument underlying the holding, if any; for options, the option strike price; quantity held (as measured by, for example, par value, notional value or number of shares, contracts or units); maturity date, if any; coupon rate, if any; market value of the holding; and the percentage weighting of the holding in the Fund's portfolio. The Web site information will be publicly available at no charge.
Investors can also obtain the Fund's Summary Prospectus, Prospectus, Statement of Additional Information (“SAI”) and its Shareholder Reports, filed twice a year. The Trust's SAI and Shareholder Reports are available free upon request from the Trust. Additionally, the SAI and the Trust's N-CSR and Form N-SAR may be viewed on-screen or downloaded from the Commission's Web site.
Quotation and last sale information for the Shares will be available via the Consolidated Tape Association (“CTA”) high speed line. Quotation and last sale information for such U.S. exchange-listed securities will be available from the exchange on which they are listed. Quotation and last sale information for exchange-listed options cleared via the Options Clearing Corporation will be available via the Options Price Reporting Authority. One source of price information for municipal securities is the Electronic Municipal Market Access, which is administered by the Municipal Securities Rulemaking Board.
Price information for cash equivalents and swaps may be obtained from brokers and dealers who make markets in such securities or through nationally recognized pricing services through subscription agreements.
In addition, the IIV as defined in NYSE Arca Equities Rule 5.2(j)(3), Commentary .01(c) will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4:00 a.m. to 8:00 p.m. E.T. in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rules 5.2(j)(3) and 5.5(g)(2), except that the Index will not meet the requirements of Commentary .02(a)(2) to NYSE Arca Equities Rule 5.2(j)(3), as described above. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A-3
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances administered by the Exchange as well as cross-market surveillances administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange, or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares, ETFs and options with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”), and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading such securities from such markets and other entities. In addition, the Exchange may obtain information regarding trading in such securities from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement (“CSSA”).
Not more than 10% of the net assets of the Fund in the aggregate invested in exchange-traded options shall consist of options whose principal market is not a member of ISG or is a market with which the Exchange does not have a CSSA.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
All statements and representations made in this filing regarding (a) the description of the portfolio, (b) limitations on portfolio holdings or reference assets or (c) the applicability of Exchange rules and surveillance procedures shall constitute continued listing requirements for listing the Shares on the Exchange.
The issuer has represented to the Exchange that it will advise the Exchange of any failure by the Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements. If the Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Equities Rule 5.5(m).
Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares of the Fund. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Units (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated IIV or Index value will not be calculated or publicly disseminated; (4) how information regarding the IIV and Index value is disseminated; (5) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. The Bulletin will also disclose that the NAV for the Shares of the Fund will be calculated after 4:00 p.m. E.T. each trading day.
The basis under the Act for this proposed rule change is the requirement
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 5.2(j)(3). The Exchange represents that trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
As of May 23, 2016, 95.87% of the weight of the Index components was composed of individual maturities that were part of an entire municipal bond offering with a minimum original principal amount outstanding of $100 million or more for all maturities of the offering. In addition, as of May 23, 2016, the total dollar amount outstanding of issues in the Index was approximately $248 billion and the average dollar amount outstanding of issues in the Index was approximately $81 million. Further, as of May 23, 2016, the most heavily weighted component represents 0.43% of the weight of the Index and the five most heavily weighted components represent 1.88% of the weight of the Index.
The Index value, calculated and disseminated at least once daily, as well as the components of the Index and their respective percentage weightings, will be available from major market data vendors. In addition, as disclosed in the Registration Statement, the portfolio of securities held by the Fund will be disclosed on the Fund's Web site. The IIV for Shares of the Fund will be disseminated by one or more major market data vendors, updated at least every 15 seconds during the Exchange's Core Trading Session.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest. In addition, a large amount of information is publicly available regarding the Fund and the Shares, thereby promoting market transparency. As disclosed in the Registration Statement, the Fund's portfolio holdings will be periodically disclosed on the Fund's Web site. Moreover, the IIV will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Exchange's Core Trading Session. The current value of the Index will be disseminated by one or more major market data vendors at least once per day. Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services, and quotation and last sale information will be available via the CTA high-speed line. The Web site for the Fund will include the prospectus for the Fund and additional data relating to NAV and other applicable quantitative information. Moreover, prior to the commencement of trading, the Exchange will inform its ETP Holders in a Bulletin of the special characteristics and risks associated with trading the Shares. If the Exchange becomes aware that the NAV is not being disseminated to all market participants at the same time, it will halt trading in the Shares until such time as the NAV is available to all market participants. With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund. Trading also may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. If the IIV or the Index values are not being disseminated as required, the Corporation may halt trading during the day in which the interruption to the dissemination of the applicable IIV or Index value occurs. If the interruption to the dissemination of the applicable IIV or Index value persists past the trading day in which it occurred, the Corporation will halt trading. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable, and trading in the Shares will be subject to NYSE Arca Equities Rule 7.34, which sets forth circumstances under which Shares of the Fund may be halted. In addition, investors will have ready access to information regarding the IIV, and quotation and last sale information for the Shares.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange notes that the proposed rule change will facilitate the listing and trading of financial investments related to exchange-traded product that invests principally in municipal securities and that will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 24, 2016, NYSE MKT LLC (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the Ninth Amended and Restated Operating Agreement of the Exchange (“Operating Agreement”) to change the process for nominating non-affiliated directors and remove an obsolete reference. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Operating Agreement to change the process for nominating non-affiliated directors and replace an obsolete reference to NYSE Market (DE), Inc. (“NYSE Market (DE)”).
Pursuant to the Operating Agreement, at least 20% of the Board of Directors of the Exchange (“Board”) is made up of “Non-Affiliated Directors” (commonly referred to as “fair representation directors”).
In addition, if the Member Organizations endorse a petition candidate for Non-Affiliated Director, pursuant to Section 2.03(a)(iv) the ICE NGC makes the determination of whether the person is eligible.
Currently, the nomination by the ICE NGC is the final step in the process for electing a Non-Affiliated Director. First, the DCRC recommends a candidate, whose name then is announced to the Exchange's Member Organizations. The Member Organizations may propose alternate candidates by petition. If there are no petition candidates, the DCRC recommends its candidate(s) to the ICE NGC. If petition candidates are proposed, the ICE NGC makes the determination of whether the candidates are eligible, and then all of the eligible candidates are submitted to the Member Organizations for a vote. The DCRC recommends to the ICE NGC the candidate receiving the highest number of votes. The ICE NGC is obligated to designate the DCRC-recommended candidate(s) as the nominee, and NYSE Group is obligated to elect such candidate(s) as a Non-Affiliated Director.
The Exchange believes obligating the ICE NGC to nominate the candidate(s) for Non-Affiliated Directors based on the DCRC's unalterable recommendation is neither necessary nor meaningful. Pursuant to Section 2.03(a)(iii), the ICE NGC is obligated to designate whomever the DCRC recommends or, if there is a petition candidate, whomever emerges from the petition process. The ICE NGC does not have any discretion. Removing this unnecessary step would make the NYSE process more efficient.
The Exchange believes that having the Exchange determine whether persons endorsed to be petition candidates are eligible also would be more efficient, as it would not require action from the ICE NGC, thereby removing the possibility of any delay in the process. The proposed change would be consistent with the petition processes of the Exchange's affiliate, NYSE MKT LLC (“NYSE MKT”), and the Nasdaq Stock Market LLC. In both cases the exchange determines the eligibility of proposed nominees.
The Exchange believes that the proposed changes will make its process more consistent with the process by which its affiliates, NYSE MKT and NYSE Arca, Inc. (“NYSE Arca”), designate their fair representation
Accordingly, the Exchange proposes to revise Section 2.03(a)(iii)-(v) of the Operating Agreement to amend the process for electing Non-Affiliated Directors. As proposed, the process would be as follows. First, as is currently the case, the DCRC would recommend a candidate, whose name would be announced to the Member Organizations, and the Member Organizations could propose alternate candidates by petition. Second, if there were no petition candidates, the DCRC would nominate the candidate(s) it had previously recommended. If there were petition candidates, the Exchange would make the eligibility determination of petition candidates, all eligible candidates would be submitted to the Member Organizations for a vote, and the DCRC would nominate the candidate receiving the highest number of votes. Finally, NYSE Group would be obligated to elect the DCRC-nominated candidate as a Non-Affiliated Director.
The Exchange would make a conforming change to Section 2.03(h)(i) to state that the DCRC “will be responsible for nominating Non-Affiliated Director Candidates.” Currently, the provision states that the DCRC “will be responsible for recommending Non-Affiliated Director Candidates to the ICE NGC.”
Section 2.02 of the Operating Agreement sets forth the Board's general supervision over Member Organizations and approved persons in connection with their conduct with or affecting Member Organizations. It provides that the Board “shall have supervision relating to the collection, dissemination and use of quotations and of reports of prices on NYSE Market (DE), Inc.” The Exchange proposes to amend Section 2.02 to replace the reference to NYSE Market (DE) with a reference to “the exchange operated by the Company.”
Following the merger of New York Stock Exchange, Inc. with Archipelago Holdings, Inc., the Exchange and its subsidiaries NYSE Market (DE) and NYSE Regulation, Inc. entered into a Delegation Agreement, pursuant to which the Exchange delegated its market functions to NYSE Market (DE) and its regulatory functions to NYSE Regulation, Inc.
The Delegation Agreement terminated in April 2016. Accordingly, NYSE Market (DE) no longer is delegated the Exchange's market functions, making the reference to NYSE Market (DE) in Section 2.02 obsolete. The Exchange therefore proposes to update the reference to NYSE Market (DE) with a reference to “the exchange operated by the Company.”
The proposed change would be consistent with Article II, Section 2.02 of the operating agreement of the Exchange's affiliate NYSE MKT, which states that its board of directors “shall have supervision relating to the collection, dissemination and use of quotations and of reports of prices on the exchange operated by the Company.”
Finally, the Exchange proposes to make technical and conforming changes to the recitals and signature page of the Operating Agreement.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Exchange Act
The proposed change would remove the requirement that the ICE NGC nominate the candidates for Non-Affiliated Directors and have the DCRC nominate the candidates for Non-Affiliated Director directly. This proposed change would remove an unnecessary step in the process of nominating candidates for Non-Affiliated Directors and increase efficiency. In addition, the proposed change would remove the requirement that the ICE NGC make the determination whether persons endorsed to be petition candidates are eligible to be Non-Affiliated Directors, and have the Exchange make such determination instead. By not requiring action from the ICE NGC, the possibility of any resulting delay in the process is removed. For these reasons, the Exchange believes that the proposed rule change would contribute to the orderly operation of the Exchange and would enable the Exchange to be so organized as to have the capacity to carry out the purposes of the Exchange Act and comply and enforce compliance with the provisions of the Exchange Act by its members and persons associated with its members. The Exchange therefore believes that approval of the proposed is consistent with Section 6(b)(1) of the Act.
The Exchange believes that amending Section 2.02 of the Operating Agreement to replace the reference to NYSE Market (DE) with a reference to “the exchange operated by the Company” would remove an obsolete reference to an entity that is no longer delegated the Exchange's market functions, thereby reducing potential confusion that may result from retaining obsolete references in the Exchange's Operating Agreement. The proposed replacement will clarify that the Board has supervision relating to the collection, dissemination and use of quotations and of reports of prices on the Exchange. The Exchange believes that replacing such obsolete reference would not be inconsistent with the public interest and the protection of investors because investors will not be harmed and in fact would benefit from increased transparency, thereby reducing potential confusion. Removing such obsolete reference will also further the goal of transparency and add clarity to the Exchange's rules.
The Exchange also believes that this filing furthers the objectives of Section 6(b)(5) of the Exchange Act
The Exchange believes that having the DCRC nominate the candidates for Non-
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. The proposed rule change is not intended to address competitive issues but rather is concerned solely with the administration and functioning of the Exchange and its Board.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On April 13, 2016, The NASDAQ Stock Market LLC (“Exchange” or “Nasdaq”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
The Exchange proposes to list and trade the Shares of the Fund under Nasdaq Rule 5735, which governs the listing and trading of Managed Fund Shares on the Exchange. The Fund is a series of the Trust and will be an actively-managed ETF. The Trust, which was established as a Delaware statutory trust on November 6, 2007 and is registered with the Commission as an investment company, has filed with the Commission a post-effective amendment to its registration statement on Form N-1A (“Registration Statement”).
The Exchange has made the following representations and statements in describing the Fund and its investment strategies, including the Fund's portfolio holdings and investment restrictions.
The Fund's investment objectives are to seek to generate current income while maintaining low portfolio duration, as a primary objective, and capital appreciation, as a secondary objective. The Fund will seek to achieve its investment objectives by investing, under normal market conditions,
At least 80% of the Fund's net assets will be invested in Variable Rate Debt Instruments or variable rate preferred
The Fund will not invest more than 20% of its net assets in the aggregate in ABS or non-agency MBS.
Under normal market conditions, the Fund will satisfy the following requirements, with respect to (i) and (iii) on a continuous basis, and with respect to (ii) and (iv) on a continuous basis measured at the time of purchase: (i) At least 75% of the investments in corporate debt securities shall have a minimum original principal amount outstanding of $100 million or more; (ii) no Variable Rate Investment (excluding U.S. government securities) will represent more than 30% of the weight of the Variable Rate Debt Instrument component of the Fund's portfolio, and the five most heavily weighted portfolio securities will not in the aggregate account for more than 65% of the weight of the Variable Rate Debt Instrument component of the Fund's portfolio; (iii) the portfolio will include a minimum of 13 non-affiliated issuers; and (iv) portfolio securities that in aggregate account for at least 90% of the weight of the portfolio will be (a) from issuers that are required to file reports pursuant to Sections 13 and 15(d) of the Exchange Act, (b) from issuers that have a worldwide market value of outstanding common equity held by non-affiliates of $700 million or more, (c) from issuers that have outstanding securities that are notes, bonds, debentures, or evidence of indebtedness having a total remaining principal amount of at least $1 billion, or (d) exempted securities as defined in Section 3(a)(12) of the Exchange Act.
Under normal market conditions, the Fund will have investment exposure to a wide variety of Variable Rate Investments. During periods of market volatility, however, the Fund may allocate a significant portion of its net assets to floating rate U.S. Treasury debt securities and agency MBS.
According to the Exchange, under normal market conditions, the Fund will invest primarily in the Variable Rate Investments described above to meet its investment objectives. In addition, the Fund may invest up to 20% of its net assets in Variable Rate Debt Instruments or variable rate preferred stock rated below investment grade, and in fixed-rate debt instruments that are rated either investment grade or below investment grade.
The Fund may invest in the following fixed-rate debt instruments: (i) Fixed-rate MBS and ABS (which includes fixed-rate commercial real estate CLOs);
The Fund may invest in non-exchange listed securities of money market mutual funds beyond the limits permitted under the 1940 Act, subject to certain terms and conditions set forth in a Commission exemptive order issued to the Trust pursuant to Section 12(d)(1)(J) of the 1940 Act, or other Commission relief.
The Fund may also take a temporary defensive position and hold a portion of its assets in cash and cash equivalents and money market instruments
The Fund may not concentrate its investments (
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A corporate debt securities deemed illiquid by the Adviser.
The Fund will not invest in futures, options, forwards, swaps, or other derivatives.
The Fund intends to qualify for and to elect to be treated as a regulated investment company under Subchapter M of the Internal Revenue Code.
The Fund's investments will be consistent with the Fund's investment objectives. Additionally, the Fund may engage in frequent and active trading of portfolio securities to achieve its investment objectives. The Fund does not presently intend to engage in any form of borrowing for investment purposes and will not be operated as a “leveraged ETF,”
After careful review, the Commission finds that the Exchange's proposal is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission also finds that the proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act,
Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services. Information regarding the previous day's closing price and trading volume information for the Shares will be published daily in the financial section of newspapers. Intraday, executable price quotations, as well as closing price information on exchange-listed securities, Variable Rate Debt Instruments, Fixed Rate Debt Instruments, and other assets not traded on an exchange will be available from major broker-dealer firms or market data vendors or from the exchange on which they are traded, as well as from automated quotation systems, published or other public sources, or online information services.
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily, and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. Nasdaq will halt trading in the Shares under the conditions specified in Nasdaq Rules 4120 and 4121, including the trading pauses under Nasdaq Rules 4120(a)(11) and (12). In addition, trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which trading is not occurring in the securities and/or the financial instruments constituting the Disclosed Portfolio of the Fund; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. Trading in the Shares also will be subject to Nasdaq Rule 5735(d)(2)(D), which sets forth additional circumstances under which Shares of the Fund may be halted.
The Exchange states that it has a general policy prohibiting the distribution of material, non-public information by its employees. Further, the Commission notes that the Reporting Authority
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by both the Exchange and FINRA, on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The Exchange represents that the Shares are deemed to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made representations, including the following:
(1) The Shares will be subject to Rule 5735, which sets forth the initial and continued listing criteria applicable to Managed Fund Shares.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares and other exchange-traded securities (including ETFs and preferred stock) and instruments held by the Fund with other markets and other entities that are members of the ISG,
(4) Prior to the commencement of trading, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. Specifically, the Information Circular will discuss the following: (a) The procedures for purchases and redemptions of Shares in Creation Units (and that Shares are not individually redeemable); (b) Nasdaq Rule 2111A, which imposes suitability obligations on Nasdaq members with respect to recommending transactions in the Shares to customers; (c) how information regarding the Intraday Indicative Value and the Disclosed Portfolio is disseminated; (d) the risks involved in trading the Shares during the Pre-Market and Post-Market Sessions when an updated Intraday Indicative Value will not be calculated or publicly disseminated; (e) the requirement that members purchasing Shares from the Fund for resale to investors deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information.
(5) For initial and continued listing, the Fund must be in compliance with Rule 10A-3 under the Act.
(6) The Fund will not invest more than 20% of its net assets in the aggregate in ABS or non-agency MBS. In addition, the Fund will not invest in senior or junior commercial loans.
(7) The variable and fixed-rate preferred stock in which the Fund may invest will be limited to securities that trade in markets that are members of the ISG, or that are parties to a comprehensive surveillance sharing agreement with the Exchange.
(8) The shares of ETFs in which the Fund may invest will be limited to securities that trade in markets that are members of the ISG, or that are parties to a comprehensive surveillance sharing agreement with the Exchange. In addition, the Fund will not invest in leveraged ETFs, inverse ETFs, or inverse leveraged ETFs.
(9) Under normal market conditions, the Fund will satisfy the following requirements, with respect to (i) and (iii) on a continuous basis, and with respect to (ii) and (iv) on a continuous basis measured at the time of purchase: (i) At least 75% of the investments in corporate debt securities shall have a minimum original principal amount outstanding of $100 million or more; (ii) no Variable Rate Investment (excluding U.S. government securities) will represent more than 30% of the weight of the Variable Rate Debt Instrument component of the Fund's portfolio, and the five most heavily weighted portfolio securities will not in the aggregate account for more than 65% of the weight of the Variable Rate Debt Instrument component of the Fund's portfolio; (iii) the portfolio will include a minimum of 13 non-affiliated issuers; and (iv) portfolio securities that in aggregate account for at least 90% of the weight of the portfolio will be (a) from issuers that are required to file reports pursuant to Sections 13 and 15(d) of the Exchange Act; (b) from issuers that have a worldwide market value of outstanding common equity held by non-affiliates of $700 million or more; (c) from issuers that have outstanding securities that are notes, bonds, debentures, or evidence of indebtedness having a total remaining principal amount of at least $1 billion; or (d)
(10) The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A corporate debt securities deemed illiquid by the Adviser.
(11) The Fund's investments will be consistent with the Fund's investment objectives. The Fund does not presently intend to engage in any form of borrowing for investment purposes, and will not be operated as a “leveraged ETF,”
(12) A minimum of 100,000 Shares will be outstanding at the commencement of trading on the Exchange.
This order is based on all of the Exchange's representations, including those set forth above and in the Notice, as modified by Amendment No. 3. The Commission notes that the Fund and the Shares must comply with the requirements of Nasdaq Rule 5735 for the Shares to be listed and traded on the Exchange.
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 3, is consistent with Section 6(b)(5) of the Act
Interested persons are invited to submit written data, views, and arguments concerning whether Amendment No. 3 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.
The Commission finds good cause to approve the proposed rule change, as modified by Amendment No. 3, prior to the thirtieth day after the date of publication of Amendment No. 3 in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 20, 2016, the Financial Industry Regulatory Authority, Inc. (“FINRA”) and the Investors Exchange LLC (“IEX”) (together with FINRA, the “Parties”) filed with the Securities and Exchange Commission (“Commission” or “SEC”) a plan for the allocation of
Section 19(g)(1) of the Securities Exchange Act of 1934 (“Act”),
Section 17(d)(1) of the Act
To implement Section 17(d)(1), the Commission adopted two rules: Rule 17d-1 and Rule 17d-2 under the Act.
To address regulatory duplication in these and other areas, the Commission adopted Rule 17d-2 under the Act.
The proposed 17d-2 Plan is intended to reduce regulatory duplication for firms that are common members of both IEX and FINRA.
The text of the Plan delineates the proposed regulatory responsibilities with respect to the Parties. Included in the proposed Plan is an exhibit (the “IEX Certification of Common Rules,” referred to herein as the “Certification”) that lists every IEX rule, and select federal securities laws, rules, and regulations, for which FINRA would bear responsibility under the Plan for overseeing and enforcing with respect to IEX members that are also members of FINRA and the associated persons therewith (“Dual Members”).
Specifically, under the 17d-2 Plan, FINRA would assume examination and enforcement responsibility relating to compliance by Dual Members with the rules of IEX that are substantially similar to the applicable rules of FINRA,
Under the Plan, IEX would retain full responsibility for surveillance and enforcement with respect to trading activities or practices involving IEX's own marketplace, including, without limitation, registration pursuant to its applicable rules of associated persons (
The Commission finds that the proposed Plan is consistent with the factors set forth in Section 17(d) of the Act
The Commission notes that, under the Plan, IEX and FINRA have allocated regulatory responsibility for those IEX rules, set forth in the Certification, that are substantially similar to the applicable FINRA rules in that examination for compliance with such provisions and rules would not require FINRA to develop one or more new examination standards, modules, procedures, or criteria in order to analyze the application of the rule, or a common member's activity, conduct, or output in relation to such rule. In addition, under the Plan, FINRA would assume regulatory responsibility for certain provisions of the federal securities laws and the rules and regulations thereunder that are set forth in the Certification. The Common Rules covered by the Plan are specifically listed in the Certification, as may be amended by the Parties from time to time.
According to the Plan, IEX will review the Certification, at least annually, or more frequently if required by changes in either the rules of IEX or FINRA, and, if necessary, submit to FINRA an updated list of Common Rules to add IEX rules not included on the then-current list of Common Rules that are substantially similar to FINRA rules; delete IEX rules included in the then-current list of Common Rules that are no longer substantially similar to FINRA rules; and confirm that the remaining rules on the list of Common Rules continue to be IEX rules that are substantially similar to FINRA rules.
The Commission is hereby declaring effective a Plan that, among other things, allocates regulatory responsibility to FINRA for the oversight and enforcement of all IEX rules that are substantially similar to the rules of FINRA for common members of IEX and FINRA. Therefore, modifications to the Certification need not be filed with the Commission as an amendment to the Plan, provided that the Parties are only adding to, deleting from, or confirming changes to IEX rules in the Certification in conformance with the definition of Common Rules provided in the Plan. However, should the Parties decide to add an IEX rule to the Certification that is not substantially similar to a FINRA rule; delete an IEX rule from the Certification that is substantially similar to a FINRA rule; or leave on the Certification an IEX rule that is no longer substantially similar to a FINRA rule, then such a change would constitute an amendment to the Plan, which must be filed with the Commission pursuant to Rule 17d-2 under the Act.
This Order gives effect to the Plan filed with the Commission in File No. 4-700. The Parties shall notify all members affected by the Plan of their rights and obligations under the Plan.
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 its Options Pricing at Chapter XV Section 2, entitled “BX Options Market—Fees and Rebates,” which governs pricing for BX members using the BX Options Market (“BX Options”). The Exchange proposes to modify fees and rebates (per executed contract) for certain Penny Pilot
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Chapter XV, Section 2 to modify fees and rebates
Currently, Chapter XV, Section 2 subsection (1) has a Select Symbols Options Tier Schedule that includes SPY,
In Change 1, under Penny Pilot Options, the Exchange proposes to remove SPY Options from the Select Symbols Options Tier Schedule. The Exchange simultaneously proposes to establish a new SPY Options Tier Schedule.
Specifically, the Exchange proposes, commensurate with establishing the SPY Options Tier Schedule, to delete SPY from the BX Options Select Symbol List. The Select Symbols on this list represent, similarly to SPY, some of the highest volume Penny Pilot Options traded on the Exchange and in the U.S. The following are currently Select Symbols: ASHR, DIA, DXJ, EEM, EFA, EWJ, EWT, EWW, EWY, EWZ, FAS, FAZ, FXE, FXI, FXP, GDX, GLD, HYG, IWM, IYR, KRE, OIH, QID, QLD, QQQ, RSX, SDS, SKF, SLV, SPY, SRS, SSO, TBT, TLT, TNA, TZA, UNG, URE, USO, UUP, UVXY, UYG, VXX, XHB, XLB, XLE, XLF, XLI, XLK, XLP, XLU, XLV, XLY, XME, XOP, XRT. The Select Symbol List is similar to that of other options exchanges (
As proposed, the BX Options Select Symbol List in Chapter XV, Section 2 subsection (1) will not include SPY and will read as follows:
The following are Select Symbols: ASHR, DIA, DXJ, EEM, EFA, EWJ, EWT, EWW, EWY, EWZ, FAS, FAZ, FXE, FXI, FXP, GDX, GLD, HYG, IWM, IYR, KRE, OIH, QID, QLD, QQQ, RSX, SDS, SKF, SLV, SRS, SSO, TBT, TLT, TNA, TZA, UNG, URE, USO, UUP, UVXY, UYG, VXX, XHB, XLB, XLE, XLF, XLI, XLK, XLP, XLU, XLV, XLY, XME, XOP, XRT.
For Penny Pilot Options, in Change 2 the Exchange is proposing to modify fees and rebates for Customer and BX Options Market Maker in respect of SPY Options.
Proposed Tier 1 in the SPY Options Tier Schedule, which is similar in structure to current Tier 1 in the Select Symbols Options Tier Schedule Rebate to Remove Liquidity,
Proposed Tier 2 in the SPY Options Tier Schedule, which is similar in structure to current Tier 2 in the Select Symbols Options Tier Schedule Rebate to Remove Liquidity, states that a Participant may earn a rebate if he removes 1500 to not more than 2999 SPY Options contracts per day in the Customer range. Proposed Tier 2 offers a $0.42 rebate when a Customer trades with Non-Customer, BX Options Market Maker, Customer, or Firm. The proposed $0.42 rebate is a modest increase from the current $0.25 rebate in the Select Symbols Options Tier Schedule now applicable to SPY Options. This increase is, as further discussed, reasonable because it incentivizes Participants to bring SPY Options volume to the Exchange. Whereas the Select Symbols Options Tier Schedule takes into account total industry Customer volume per month including equity and ETF options ADV contracts, in order to incentivize Participants to transact more SPY Options volume on the Exchange, proposed Tier 2 looks only at the amount of daily SPY Options volume in the Customer range that is removed by the Participant.
The highest proposed Tier 3 in the SPY Options Tier Schedule, which is similar in structure to current Tier 3 in
As part of the new SPY Options Tier Schedule the Exchange proposes six notes regarding certain fees to add liquidity and fees to remove liquidity. The first four proposed notes are taken directly from the Select Symbols Options Tier Schedule and use the same language except that these proposed notes refer to SPY Options rather than Select Symbols. The Exchange is also adding a sentence to the fourth note to state: There will be no fee or rebate for Customer SPY Options that add liquidity when contra to Firm, BX Options Market Maker or Non Customer.
Today, when BX Options Market Maker trades in SPY Options with Customer, the fee to add liquidity is between $0.29 and $0.44 per contract and the fee to remove liquidity is between $0.25 and $0.42 per contract, according to Tiers. Going forward, per proposed note 5, both the fee to add liquidity in SPY Options and the fee to remove liquidity in SPY Options when BX Options Market Maker trades with Customer will be $0.44 per contract. Today the fee to add liquidity when BX Options Market maker trades in SPY Options with Non-Customer or BX Options Market Maker, or Firm is between $0.14 and $0.00 per contract, according to Tiers. Going forward per proposed note 6 the BX Options Market Maker fee to add liquidity will be $0.10 per contract when trading SPY Options with Firm, BX Options Market Maker or Non Customer. The Exchange believes that it is reasonable to normalize the fees discussed in note 5 and in note 6 so that they are the same for BX Options Market Makers when trading such SPY Options.
As proposed, the SPY Options Tier Schedule in Chapter XV, Section 2 subsection (1) will read as follows:
The Exchange is adopting a separate SPY Options Tier Schedule because it believes that it will provide even greater incentives for execution of SPY Options contracts on the BX Options Market. The Exchange believes that its proposal should provide increased opportunities for participation in SPY Options executions on the Exchange, facilitating the ability of the Exchange to bring together participants and encourage more robust competition for orders.
The Exchange believes that the proposed rule change is consistent with Section 6 of the Act,
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the
Likewise, in
Further, “[n]o one disputes that competition for order flow is `fierce.' . . . As the SEC explained, `[i]n the U.S. national market system, buyers and sellers of securities, and the broker-dealers that act as their order-routing agents, have a wide range of choices of where to route orders for execution'; [and] `no exchange can afford to take its market share percentages for granted' because `no exchange possesses a monopoly, regulatory or otherwise, in the execution of order flow from broker dealers'. . . .”
The Exchange believes that its proposal should provide increased opportunities for participation in SPY Options executions on the Exchange, facilitating the ability of the Exchange to bring together participants and encourage more robust competition for orders.
The Exchange believes that the proposed change is reasonable, equitable and not unfairly discriminatory for the following reasons.
For Penny Pilot Options, in Change 1, the Exchange proposes modifications to remove SPY Options from the Select Symbols Options Tier Schedule. The Exchange simultaneously proposes to establish a new SPY Options Tier Schedule.
Deleting SPY Options from the Select Symbols Options Tier Schedule of rebates and fees is reasonable because SPY Options are proposed to have their own new Tier structure to further incentivize Participants to send SPY Options order flow to the Exchange. The Exchange believes it is equitable and not unfairly discriminatory to delete SPY Options from Select Symbols and establish the SPY Options Tier Schedule because this schedule will be applied uniformly to all similarly situated Participants. This is further discussed below.
For Penny Pilot Options, in Change 2 the Exchange is proposing to modify fees and rebates for Customer and BX Options Market Maker in respect of SPY Options.
The Exchange believes that it is reasonable to establish separate SPY Options Tiers to attract SPY Options volume to the Exchange while separately setting forth fees and rebates related to SPY Options. The Exchange believes that the proposed Tiers in the SPY Options Tier Schedule are reasonable in that they reflect a structure that is not novel in the options markets but rather is similar to that of other options markets and competitive with what is offered by other exchanges.
Establishing SPY Option Tiers for Rebate to Remove Liquidity is reasonable because it encourages market participant behavior through progressive tiered fees and rebates using an accepted methodology among options exchanges.
For Penny Pilot Options, establishing the Customer-related and BX Options Market Maker-related fee and rebate changes in respect of SPY Options, which includes the new SPY Options Tiers with notes, is equitable and not unfairly discriminatory because the Exchange's proposal to assess fees and pay rebates according to the SPY
The fee and rebate schedule as proposed continues to reflect differentiation among different market participants. The Exchange believes that the differentiation is equitable and not unfairly discriminatory, as well as reasonable, and notes that unlike others (
As part of the new SPY Options Tier Schedule the Exchange proposes six notes regarding certain fees to add liquidity and fees to remove liquidity. The Exchange believes that this is reasonable. The first four proposed notes are taken directly from the Select Symbols Options Tier Schedule and use the same language except that these proposed notes refer to SPY Options rather than Select Symbols; and note four has one proposed added sentence.
Today, when BX Options Market Maker trades in SPY Options with Customer, the fee to add liquidity is between $0.29 and $0.44 per contract and the fee to remove liquidity is between $0.25 and $0.42 per contract, according to Tiers. Going forward, per proposed note 5, both the fee to add liquidity in SPY Options and the fee to remove liquidity in SPY Options when BX Options Market Maker trades with Customer will be $0.44 per contract. Today the fee to add liquidity when BX Options Market maker trades in SPY Options with Non-Customer or BX Options Market Maker, or Firm is between $0.14 and $0.00 per contract, according to Tiers. Going forward per proposed note 6 the BX Options Market Maker fee to add liquidity will be $0.10 per contract when trading SPY Options with Firm, BX Options Market Maker or Non Customer.
For Penny Pilot Options, establishing the Customer-related and BX Options Market Maker-related fee and rebate changes in respect of SPY Options, which includes the new SPY Options Tiers with notes, is equitable and not unfairly discriminatory. This is because the Exchange's proposal to assess fees and pay rebates according to the SPY Options Tier Schedule will apply uniformly to all similarly situated Participants. Thus, for example, Participants would earn a Rebate to Remove Liquidity according to the same Tiers per the SPY Options Tier Schedule. It is equitable and not unfairly discriminatory to assess the same fee and rebate in respect of SPY Options regardless of industry trade volume where this is applied uniformly to all similarly situated Participants.
The Exchange believes that by making the proposed changes it is incentivizing Participants to bring more SPY Options volume to the Exchange to further enhance liquidity in this market.
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. Specifically,
The Exchange operates in a highly competitive market in which many sophisticated and knowledgeable market participants can readily and do send order flow to competing exchanges if they deem fee levels or rebate incentives at a particular exchange to be excessive or inadequate. Additionally, new competitors have entered the market and still others are reportedly entering the market shortly. These market forces ensure that the Exchange's fees and rebates remain competitive with the fee structures at other trading platforms. In that sense, the Exchange's proposal is actually pro-competitive because the Exchange is simply continuing its fees and rebates and establishing separate Tiers for SPY Options in order to remain competitive in the current environment.
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 terms of intra-market competition, the Exchange notes that price differentiation among different market participants operating on the Exchange (
In this instance, the proposed changes to the fees and rebates for execution of contracts on the Exchange, and establishing SPY Options Tiers with notes for such fees and rebates, do not impose a burden on competition because the Exchange's execution and routing services are completely voluntary and subject to extensive competition both from other exchanges and from off-exchange venues. If the changes proposed herein are unattractive to market participants, it is likely that the Exchange will lose market share as a result. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets. Additionally, the changes proposed herein are pro-competitive to the extent that they continue to allow the Exchange to promote and maintain order executions.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
This notice announces the renewal of the Charter for the International Telecommunication Advisory Committees (ITAC). In accordance with the provisions of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. Appendix) and the general authority of the Secretary of State and the Department of State set forth in Title 22 of the United States code, in particular Sections 2656 and 2707, the charter of the International Telecommunication Advisory Committee has been extended until July 22, 2016.
The ITAC primarily consists of members of the telecommunications industry, ranging from network operators and service providers to equipment vendors, members of academia, members of civil society, and officials of interested government agencies. The ITAC provides views and advice to the Department of State on positions on international telecommunications and information policy matters. This advice has been a major factor in ensuring that the United States is well prepared to participate effectively in the international telecommunications and information policy arena.
Please contact Franz Zichy at 202-647-5778,
Department of State.
Notice.
The U.S. Coordinator for International Communications and Information Policy (“the Coordinator”), in the U.S. Department of State Bureau of Economic and Business Affairs, is accepting applications for membership on the International Telecommunication Advisory Committee (ITAC).
Applications must be received by the Department of State (at the email addresses at the end of this Notice) not later than August 26, 2016.
The Department of State is soliciting applications from subject matter experts who are U.S. citizens or legal permanent residents and representatives of scientific or industrial organizations that are engaged in the study of telecommunications or in the design or manufacture of equipment intended for telecommunication services, representatives of civil society organizations and academia, and individuals of any other corporation or organization engaged in telecommunications and information policy matters. Applicants should include experience participating in international organizations addressing telecommunications and information technical and policy issues, participating in U.S. preparatory activities for conferences and meetings of international organizations addressing technical and policy issues, and serving on U.S. delegations.
The ITAC is a federal advisory committee under the authority of 22 U.S.C. 2651a and 2656 and the Federal Advisory Committee Act, 5 U.S.C. Appendix. (“FACA”). The purpose of the ITAC is to advise the Coordinator and the Department of State with respect to, and provide strategic recommendations on, communication and information policy matters related to U.S. participation in the work of the International Telecommunication Union (ITU), the Organization of American States Inter-American Telecommunication Commission (CITEL), the Organization for Economic Cooperation and Development (OECD), the Asia Pacific Economic Cooperation Telecommunications & Information Working Group (APEC TEL) and other international bodies addressing communications and information policy issues.
Members are appointed by the Coordinator and must be U.S. citizens or legal permanent residents of the United States, appointed as representative of U.S. organizations. To ensure diversity in advice, ITAC membership will include not more than one representative from any affiliated agency or organization so long as the threshold of no fewer than 30 members is met. Membership in subcommittees is not limited to a prescribed number, and there may be more than one member designated to a subcommittee for each affiliated agency or organization. The ITAC charter calls for representative members; therefore, a prospective member must represent a company or organization. Solo members (who “represent themselves”) will not be selected. ITAC members must be versed in the complexity of international communications and information policy issues and must be able to advise the Coordinator and the Department of State on these matters. Members are expected to use their expertise and provide candid advice.
Please note that ITAC members will not be reimbursed for travel, per diem, nor other expenses incurred in connection with their duties as ITAC members. For those interested in applying, the ITAC currently intends to hold a meeting on or about October 12, 2016. A separate
This information should be emailed to:
Please contact Franz Zichy at 202-647-5778,
Morristown & Erie Railway, Inc. (M&E) has filed a verified notice of exemption
M&E has certified that: (1) No local or overhead traffic has moved over the Line for a least two years; (2) any overhead traffic that could move over the Line can be rerouted; (3) no formal complaint filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of a complainant within the two-year period; and (4) the requirements at 49 CFR 1105.7(c) (environmental report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on September 2, 2016, unless stayed pending reconsideration.
A copy of any petition filed with the Board should be sent to M&E's representative: John K. Fiorilla, Capehart & Scatchard, PA, 8000 Midlantic Drive, Suite 300S, Mt. Laurel, NJ 08054.
If the verified notice contains false or misleading information, the exemption is void ab initio.
M&E has filed a combined environmental and historic report that addresses the effects, if any, of the abandonment on the environment and historic resources. OEA will issue an environmental assessment (EA) by August 8, 2016. Interested persons may obtain a copy of the EA by writing to OEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling OEA at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service at (800) 877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), M&E shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by filing of a notice of consummation by August 3, 2017, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
In accordance with Part 235 of Title 49 Code of Federal Regulations (CFR) and 49 U.S.C. 20502(a), this document provides the public notice that by a document dated July 11, 2016, the Georgia and Florida Railway LLC (GFR) petitioned the Federal Railroad Administration (FRA) seeking approval for the discontinuance or modification of a signal system. FRA assigned the petition Docket Number FRA-2016-0071.
Applicant: Georgia and Florida Railway LLC, Mr. Jason Scott, Vice President Signals and Communications, 1019 Coastline Avenue, Albany, GA 31705.
GFR seeks approval of the discontinuance of the automatic interlocking at Darrow Jct., GA. The discontinuance will consist of removal of signals on the former Seaboard Coast Line Railroad (SCLRR), at Milepost (MP) 695 and MP 697.3; removal of signals from the former Georgia Northern Railroad (GNR) at MP 61.7 and MP 63.3; and removal of interlocking controls and signals at the diamond at Darrow Jct. on the Albany Subdivision.
These changes are being proposed by GFR, which operates on both of the tracks at the interlocking, due to the system being outdated. The former SCLRR line is now being used for the temporary storage of cars and the former GNR line is a through track. Gates and derails will be placed on the former SCLRR line to control movements over the diamond.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
• Web site:
• Fax: 202-493-2251.
• Mail: Docket Operations Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC 20590.
• Hand Delivery: 1200 New Jersey Avenue SE., Room W12-140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
Communications received by September 19, 2016 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Michelin North America, Inc. (MNA), has determined that certain MNA tires do not fully comply with paragraph S5.5.1(b) of Federal Motor Vehicle Safety Standard (FMVSS) No. 139,
The closing date for comments on the petition is September 2, 2016.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and be submitted by any of the following methods:
•
•
•
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
The petition, supporting materials, and all comments received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible.
When the petition is granted or denied, notice of the decision will also be published in the
All documents submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at
DOT's complete Privacy Act Statement is available for review in the
I.
This notice of receipt of MNA's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
II.
III.
IV.
S5.5.1
. . .
(b)
49 CFR 574.5(g)(4) provides that the fourth grouping of symbols within the tire identification number shall “identify the week and year of manufacture.” The regulation specifies that “[t]he first and second symbols of the date code must identify the week of the year,” and “[t]he third and fourth symbols of the date code identify the last two digits of the year of manufacture.” Applying these requirements, the subject tires, which were manufactured during week 2 of 2016, should display “0216” as the date code, but instead display “0126” as the date code.
V.
In support of its petition, MNA submitted the following information and analysis of the subject noncompliance:
1. MNA stated that although the date code is not correct, it specifies a date well into the future and thus offers a unique identification for the subject tires. Futhermore, the incorrect but unique coding has been recorded in MNA's records and can be used to identify the subject tires in the event of a future market action.
2. MNA also stated that there should be no risk of duplication of the TIN in the future since the current 2 digit plant code will evolve to a 3 digit plant code by April 25, 2025, thus creating a new TIN sequence prior to week 1 of 2026 (the date inadvertently specified on the subject tires).
3. MNA further noted that that the incorrect date code does not compromise the ability to register the tire. Tire registration cards accept the date as marked (0126). Moreover, the Uniroyal tire registration Web page accepts the TIN with the date as described.
4. MNA also stated that Michelin's consumer care team has been informed should there be any questions from a consumer or dealer.
5. MNA concluded by noting that all other markings on the subject tires conform to the applicable regulations and meet all performance requirements of FMVSS No. 139.
In its part 573 Report, MNA stated that there is no imminent safety risk associated with the mismarking.
In summation, MNA believes that the described noncompliance is inconsequential as it relates to motor vehicle safety, and that its petition, to exempt MNA from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject tires that MNA no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve equipment distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant tires under their control after MNA notified them that the subject noncompliance existed.
(49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8)
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Cooper Tire & Rubber Company (Cooper), has determined that certain Mastercraft and Big O tires do not fully comply with paragraph S5.5(f) of Federal Motor Vehicle Safety Standard (FMVSS) No. 139,
The closing date for comments on the petition is September 2, 2016.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and be submitted by any of the following methods:
•
•
•
• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
The petition, supporting materials, and all comments received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible.
When the petition is granted or denied, notice of the decision will also
All documents submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at
DOT's complete Privacy Act Statement is available for review in a
I.
This notice of receipt of Cooper's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
II.
• Mastercraft LSR Grand Touring size 215/60R16.
• Mastercraft LSR Grand Touring size 225/60R16.
• Big O Legacy Tour Plus size 215/60R16.
• Big O Legacy Tour Plus size 225/60R16.
III.
IV.
S5.5
(f) The actual number of plies in the sidewall, and the actual number of plies in the tread area, if different.
V.
In support of its petition, Cooper submitted the following information pertaining to the subject noncompliance:
(a) Cooper states that the mislabeled number of plies indicated on the sidewalls has no impact on the operational performance or durability of the subject tires or on the safety of vehicles on which those tires are mounted. Cooper states that while the subject tires do not indicate the correct number of plies in the tread on the outboard side, they meet all other performance requirements under the Federal Motor Vehicle Safety Standards. Cooper notes that the number of plies in the tread does not impact the performance or operation of a tire and does not create a safety concern to either the operator of the vehicle on which the tires are mounted, or the safety of personnel in the tire repair, retread and recycle industry.
(b) Cooper also states that the subject tires were built as designed and meet or exceed all performance requirements and testing requirements specified under FMVSS No. 139. Cooper states that the subject tires completed all Cooper Tire internal compliance testing criteria, including passing shipping certification testing in January 2016. In addition, the 215/60R16, Mastercraft LRS Grand Touring, serial week 1116, passed all surveillance testing conducted in early March 2016.
(c) Cooper's states that the stamping deviation occurred as a result of an administrative error when incorrect information was entered into Cooper Tire's electronic specification system at the corporate level. That system communicates information to the mold management system which in turn generates the construction stamping pocket plate. The electronic specification system incorrectly listed the specific tire sizes and brands as two-ply, when the tires were actually designed with an HPL construction or as having a single ply in the tread. The incorrect construction information was then engraved in the pocket plate and then installed in the affected molds.
(d) Cooper states that it is not aware of any crashes, injuries, customer complaints, or field reports associated with the mislabeling.
Cooper states that the mislabeling has been corrected at the corporate level and the pocket plates of the molds have been replaced, therefore, no additional tires will be manufactured or sold with the noncompliance. Cooper also states that it has conducted training with tire engineers at the corporate level responsible for inputting information into the electronic specification system on the importance of the information they are submitting.
Cooper observed that NHTSA has previously granted inconsequential noncompliance petitions regarding noncompliances that are similar to the subject noncompliance.
Cooper concluded by expressing the belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety, and that its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject tires that Cooper no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve equipment distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant tires under their control after Cooper notified them that the subject noncompliance existed.
49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Cooper Tire & Rubber Company (Cooper), has determined that certain MULTI-MILE Grand Tour LS passenger vehicle tires do not fully comply with paragraph S5.5.1(b) of Federal Motor Vehicle Safety Standard (FMVSS) No. 139,
The closing date for comments on the petition is September 2, 2016.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and be submitted by any of the following methods:
•
•
•
• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
The petition, supporting materials, and all comments received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible.
When the petition is granted or denied, notice of the decision will also be published in the
All documents submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at
DOT's complete Privacy Act Statement is available for review a
I. Overview: Pursuant to 49 U.S.C. 30118(d) and 30120(h) and their implementing regulations at 49 CFR part 556, Cooper submitted a petition for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential as it relates to motor vehicle safety.
This notice of receipt of Cooper's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
II. Tires Involved: Affected are approximately 37 Cooper Tire MULTI-MILE Grand Tour LS Size 205/70R15 Tubeless Radial Tires manufactured between March 24, 2016 and March 29, 2016.
III. Noncompliance: Cooper explains that the noncompliance is that the outboard sidewalls of the subject tires are labeled with an incorrect manufacturer's identification mark and therefore do not fully meet all applicable requirements of paragraph S5.5.1(b) of FMVSS No. 139. Specifically, the tires are labeled with the manufacturer's identification mark “Y9,” assigned to a manufacturing facility in P.T. Gadjah Tunggual, Kabupaten Tangerang, Jawa Barat, Indonesia, instead of “U9,” assigned to Cooper's manufacturing facility in Tupelo, Mississippi, where the tires were actually produced.
IV. Rule Text: Paragraph S5.5.1 of FMVSS No. 139 requires in pertinent part:
. . .
(b)
V. Summary of Cooper's Petition: Cooper states its belief that the subject noncompliance is inconsequential to motor vehicle safety on account of the fact that while the subject tires contain an incorrect manufacturer's identification mark on the outboard sidewall, the full and correct tire code (including the correct manufacturer's identification mark) is available on the intended inboard sidewall.
Cooper also indicated that it has taken the following steps to ensure proper registration of the subject tires:
(a) Cooper has informed all internal personnel responsible for manual processing of tire registration cards about the incorrect manufacturer identification issue so that cards containing the “Y9” designation will be accepted and properly processed when all other information accurately identifies the subject tires. Additionally, consistent with its usual practices, whenever a tire registration card is submitted with inaccurate or incomplete information, Cooper sends a mailing to the consumer seeking additional information by providing a prepaid response card.
(b) Cooper has also modified its database to accept “Y9” when other information (brand, serial weeks affected etc.) is accurate.
(c) Cooper has contacted Computerized Information and Management Services, Inc. (CIMS), a third-party vendor that collects and provides tire registration cards to Cooper, so that tire registration cards will not be rejected solely due to improper plant code information.
Cooper also noted that while the subject tires are mislabeled on the outboard side, they meet all other performance requirements of the applicable standard. The company observed that plant code information has no bearing on the performance or operation of a tire and does not create a safety concern to either the operator of the vehicle on which the tires are mounter of the safety of personnel in the tire repair, retread and recycle industry. Cooper also stated that on April 22, 2016 the incorrect mold that caused the stamping error was removed from production and replaced with a corrected plug, thereby eliminating the problem in future production.
Please refer to Cooper's petition for its complete reasoning and any associated illustrations. The petition and all supporting documents are available by logging onto the Federal Docket Management System (FDMS) Web site at:
In summation, Cooper believes that the described noncompliance of the subject tires is inconsequential as it relates to motor vehicle safety, and that its petition, to exempt Cooper from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and remedying the noncompliance, as required by 49 U.S.C. 30120, should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject tires that Cooper no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve equipment distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant tires under their control after Cooper notified them that the subject noncompliance existed.
49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8,
Office of Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice, list of applications delayed more than 180 days.
In accordance with the requirements of 49 U.S.C. 5117(c), PHMSA is publishing the following list of special permit applications that have been in process for 180 days or more. The reason(s) for delay and the expected completion date for action on each application is provided in association with each identified application.
Ryan Paquet, Director, Office of Hazardous Materials Special Permits and Approvals, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH-30, 1200 New Jersey Avenue Southeast, Washington, DC 20590-0001, (202) 366-4535.
Departmental Offices, U.S. Department of the Treasury.
Notice of open meeting.
This notice announces that the Department of the Treasury's Federal Advisory Committee on Insurance (“Committee”) will convene a meeting on Thursday, August 18, 2016, in the Cash Room, 1500 Pennsylvania Avenue NW., Washington, DC 20220, from 1:00-5:00 p.m. Eastern Time. The meeting is open to the public, and the site is accessible to individuals with disabilities.
The meeting will be held on Thursday, August 18, 2016, from 1:00-5:00 p.m. Eastern Time.
The Federal Advisory Committee on Insurance meeting will be held in the Cash Room, Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220. The meeting will be open to the public. Because the meeting will be held in a secured facility, members of the public who plan to attend the meeting must either:
1. Register online. Attendees may visit
2. Contact the Federal Insurance Office (FIO), at (202) 622-0512, by 5:00 p.m. Eastern Time on Friday, August 12, 2016, and provide registration information.
Requests for reasonable accommodations under Section 504 of the Rehabilitation Act should be directed to Marcia Wilson, Office of Civil Rights and Diversity, Department of the Treasury at (202) 622-8177, or
Chester McPherson, Deputy Director, Consumer Affairs, FIO, Room 1410, Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220, at (202) 622-0512 (this is not a toll-free number). Persons who have difficulty hearing or speaking may access this number via TTY by calling the toll-free Federal Relay Service at (800) 877-8339.
Notice of this meeting is provided in accordance with the Federal Advisory Committee Act, 5 U.S.C. App. II, 10(a)(2), through implementing regulations at 41 CFR 102-3.150.
• Send electronic comments to
• Send paper statements in triplicate to the Federal Advisory Committee on Insurance, Room 1410, Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220.
In general, the Department of the Treasury will post all statements on its Web site
Farm Service Agency, Commodity Credit Corporation, Rural Housing Service, Rural Business-Cooperative Service, and Rural Utilities Service, USDA.
Final rule.
The Farm Service Agency (FSA) is consolidating, updating, and amending its regulations implementing the National Environmental Policy Act of 1969, as amended (NEPA). FSA's previous NEPA regulations had been in place since 1980. Significant changes to the structure of FSA and the scope of FSA's programs require changes in FSA's NEPA regulations. The changes will also better align FSA's NEPA regulations with the President's Council on Environmental Quality (CEQ) NEPA regulations and meet the FSA responsibilities for periodic review of their categorical exclusions (CatExs). CatExs involve proposed actions that typically do not result in individual or cumulative significant environmental effects or impacts and therefore do not merit further environmental review in an Environmental Assessment (EA) or Environmental Impact Statement (EIS). The additions to the existing list of CatExs improves the clarity and consistency of the regulations. This final rule also expands and clarifies the list of proposed actions that require an EA. The FSA NEPA implementing regulations also cover the Commodity Credit Corporation (CCC) programs that FSA administers on behalf of CCC. In addition, this rule makes conforming changes to existing references to FSA NEPA regulations in other FSA regulations. The revisions to the FSA NEPA implementing regulations are intended to improve transparency and clarity of the FSA NEPA process for FSA program participants, and to provide for a more efficient environmental review that will lead to better decisions and outcomes for stakeholders and the environment. Finally, in coordination with the Rural Housing Service, Rural Business-Cooperative Service, and Rural Utilities Service, this rule removes the old NEPA regulations.
Effective: August 3, 2016.
Nell Fuller; telephone (202) 720-6303. Persons with disabilities or who require alternative means for communication should contact the U.S. Department of Agriculture (USDA) Target Center at (202) 720-2600 (voice).
The proposed rule for this rulemaking initiative was published in the
NEPA (Pub. L. 91-190, 42 U.S.C. 4321-4370) establishes a national environmental policy, sets goals for the protection, maintenance, and enhancement of the environment, and provides a process for carrying out the policy and working toward those policy goals. The NEPA process requires different levels of environmental review and analysis of Federal agency proposed actions, depending on the nature of the proposed action. As stated in 40 CFR 1508.18(a), proposed actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals. Some proposed actions, because of the nature of their potential environmental effects, are categorically excluded from further environmental review and are known as CatExs. If a proposed action is not categorically excluded, additional review will be performed either through an EA, or, where the circumstances warrant, a more rigorous EIS to ensure that the additional time and analysis is both expeditious and serves to better inform the decision makers. Rules specifying the requirements for NEPA review are in government-wide NEPA regulations issued by CEQ and available in 40 CFR parts 1500 through 1508, and in individual agency regulations, including the USDA's NEPA implementing regulations (7 CFR part 1b). This rule updates the FSA NEPA implementing regulations.
A CatEx is used typically for proposed actions that do not have a significant impact on the quality of the human environment, individually or cumulatively, such as a farm loan consolidation or funding for the maintenance of existing buildings. The general NEPA regulations define the human environment as the natural and physical environment, and the relationship of people with that environment (40 CFR 1508.14). This final rule specifies categories of FSA proposed actions that are categorically excluded, if there are no extraordinary circumstances for the specific proposed action. As used in this rule, the term “extraordinary circumstance” refers to the presence of circumstances specified in 7 CFR 799.33 and the impacts of those circumstances—for example, impacts that are potentially adverse, significant, uncertain, or involve unique or unknown risks; in addition, it will be determined if the impacts can be avoided or mitigated. The results of the review for extraordinary circumstances will be the determination if the proposed action can be categorically excluded or if and EA or EIS is required. If a proposed action is not categorically excluded, then the next step in the NEPA process is usually an EA. An EA is prepared to analyze the potential environmental impacts of a Federal agency proposed action and alternatives to the proposed action to determine whether proposed actions can proceed without supplemental environmental review through an EIS. An EA can result in:
• A proposed action not proceeding,
• A Finding of No Significant Impact (FONSI), or
• A determination that the environmental impact will be significant and therefore, an EIS is required.
If the agency determines at an early stage that there is clearly the potential for significant environmental impacts, FSA can start the EIS process without first doing an EA.
NEPA requires a Federal agency to prepare an EIS for any major Federal proposed action that significantly affects
(1) The environmental impacts of the proposed action;
(2) Any adverse environmental effects that cannot be avoided;
(3) Alternatives to the proposed action;
(4) The relationship between the local, short-term resource uses and the maintenance and enhancement of long-term ecosystem productivity; and
(5) Any irreversible and irretrievable commitments of resources.
NEPA requires that the environmental review must be started once a proposed action is concrete enough to warrant review and must be completed at the earliest possible time to ensure that planning and implementation decisions reflect environmental values. The NEPA review informs the decision maker and the affected public, and must be completed before a decision is made.
NEPA also establishes CEQ. Executive Order 11514, “Protection and Enhancement of Environmental Quality,” as amended by Executive Order 11991, “Relating to Protection and Enhancement of Environmental Quality,” directs CEQ to prepare binding regulations governing how Federal agencies are to implement NEPA. The CEQ NEPA regulations (40 CFR parts 1500-1508) provide this general regulatory framework.
The CEQ NEPA regulations require every Federal agency to develop agency-specific procedures for implementing NEPA. Each Federal agency's NEPA implementing procedures supplement the CEQ regulations to address the agency's specific environmental review needs. This final rule supplements the CEQ's NEPA regulations, and the USDA general NEPA regulations in 7 CFR part 1b, and specifies their implementation by FSA.
FSA was created in 1995 as required by the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994 (Pub. L. 103-354); the former Agricultural Stabilization and Conservation Service (ASCS) and the farm loan portion of the Farmers Home Administration (FmHA) were merged and are currently the Farm Programs and Farm Loan Programs, respectively. Since that reorganization, FSA has operated under two separate sets of NEPA regulations, one for the programs within the scope of Farm Programs and one for the programs within the scope of Farm Loan Programs. This final rule consolidates, clarifies, and updates FSA NEPA regulations to establish a single set of NEPA regulations for FSA, and to ensure that those regulations reflect current FSA organizational structure, environmental laws, Executive Orders, and CEQ requirements.
FSA's scope also includes field operations and commodity warehouse activities that were included in the scope of the former ASCS. These activities are already categorically excluded as inventory, informational, or administrative actions under USDA's general NEPA implementing rules in 7 CFR part 1b, and those CatExs continue to be available for application by FSA. This rule does not change the USDA department-wide CatExs that apply to FSA programs that solely involve those proposed actions or similar proposed actions identified in 7 CFR 1b.3.
The Farm Programs part of FSA oversees conservation, disaster assistance, price support, farm storage facility loans, and commodity loan programs. Previously, the NEPA regulations governing FSA Farm Programs were specified in 7 CFR part 799, which this rule revises. Many current FSA programs did not exist in 1980 and were therefore not specifically addressed under the previous NEPA regulations in 7 CFR part 799.
The Farm Loan Programs part of FSA is responsible for providing direct farm loans, guaranteed farm loans, and land contract guaranteed loans. Previously, the NEPA regulations governing Farm Loan Programs in 7 CFR part 1940, subpart G applied to FSA farm loans and to other USDA activities associated with the Rural Development agencies: Rural Housing Service, Rural Business-Cooperative Service, and Rural Utilities Service, (also formerly part of FmHA). The regulations in 7 CFR part 1940 contained provisions that refer to programs that either no longer exist or are not FSA programs. This rule specifies the NEPA regulations for FSA Farm Loan Programs in 7 CFR part 799; part 1940 will no longer apply to those programs. The Rural Development agencies (Rural Housing Service, Rural Business-Cooperative Service, and Rural Utilities Service) published a final rule on March 2, 2016 (81 FR 11000-11053), amending part 1940, subpart G, to specify that subpart G does not apply to programs administered by the Rural Housing Service or the Rural Business-Cooperative Service. (NOTE: Subpart G had not applied to the Rural Utilities Service.) Therefore, with the changes made by this rule, the regulations in subpart G will no longer be used by any agency. Therefore, this rule removes subpart G to part 1940 in its entirety.
FSA is also responsible for NEPA compliance for the CCC programs that FSA administers on behalf of CCC. FSA has no separate NEPA regulations for CCC programs; previous FSA NEPA regulations in 7 CFR part 799 applied to CCC programs that are administered by FSA. Those CCC programs continue to be included in the scope of 7 CFR 799, as revised by this rule.
The revised part 799 has six subparts, titled “General FSA Implementing Regulations for NEPA,” “FSA and Program Participant Responsibilities,” Environmental Screening Worksheet,” “Categorical Exclusions,” “Environmental Assessments,” and “Environmental Impact Statements.” The “FSA and Program Participant Responsibilities” subpart includes an overview chart of the FSA NEPA process.
The changes are intended to improve clarity in the regulations, allow more efficient program implementation at the field level, provide more openness and transparency during FSA's environmental decision-making, and simplify program administration.
Following the discussion of the regulatory changes, a summary table provides a general comparison of the major NEPA provisions, the previous regulations, and this final regulation. In general, FSA has already administratively implemented FSA NEPA procedures to meet current NEPA requirements as specified in Executive Orders and CEQ regulations; this rule revises the regulations to include those currently implemented FSA NEPA procedures. For example, Programmatic EAs (PEAs) were not in the previous regulations, but FSA already does such analyses in compliance with current CEQ regulations. The provisions for PEAs are a revision to the regulations. A detailed crosswalk comparing the specific regulatory changes between the previous FSA regulations and these final regulations would not accurately reflect the changes in FSA NEPA procedures that impact the public. Combining the requirements from the previous 7 CFR parts 799 and 1940 involved significant editing and restructuring. This resulted in final regulations that are significantly rewritten, but the underlying FSA NEPA procedures remain largely unchanged. Therefore, the summary table highlights
The CEQ regulations require that Federal agencies implement NEPA procedures, in part to “reduce paperwork and the accumulation of extraneous background data and to emphasize real environmental issues and alternatives” (40 CFR 1500.2(b)). FSA believes that the changes meet that requirement by clarifying the procedures for completing EAs and EISs and expanding and making the CatEx list more specific. The changes will reduce paperwork and allow FSA to focus limited resources on real environmental issues and alternatives, as appropriate.
Emergency circumstances will continue to be handled consistent with 40 CFR 1506.11.
This rule includes procedures to increase transparency and accountability of FSA's NEPA process. One of those procedures is a new worksheet that will be used to assess the need for, and extent of, NEPA reviews for all FSA programs. This final rule describes the use of the new environmental screening worksheet (ESW) in 7 CFR part 799, subpart C. The ESW and the process for using it represent a substantive change from previous practice. Implementation of the ESW consolidates two forms previously required by 7 CFR parts 799 and 1940, subpart G, reducing total paperwork and ensuring better compliance with NEPA. FSA staff will use the ESW as an initial screening tool to record the use of a CatEx and review any likely environmental impacts of proposed actions and determine the potential significance and appropriate level of NEPA review (CatEx, EA, or EIS). For CatExs, completion of the ESW will be used to record the relevant CatEx being used; review and document the determination of whether extraordinary circumstances exist; and determine whether the CatEx is appropriately applied or if further environmental review of that proposed action is necessary. The new ESW consolidates the review criteria from multiple forms and checklists previously used by FSA for environmental review. Having one form will reduce the paperwork for FSA and ensure compliance with NEPA.
As revised by this rule, 7 CFR part 799, subpart C, now specifies the categories of proposed actions that require the use of the ESW and how the ESW will be used. The ESW will be used to either record the CatEx or for a review, unless it is clear that the proposed action requires an EA or EIS or related environmental review, such as a PEA or PEIS. Generally, all proposed actions listed in § 799.31 will not require further documentation beyond that provided in the substantiation for establishing the CatEx and the project file for specific proposed actions. The review using the ESW will be required for all proposed actions listed in § 799.32. As noted in the proposed rule, an administrative record was created, in consultation with CEQ, to substantiate the CatExs in this rule. The administrative record includes benchmarking CatExs by other government agencies and documentation from previous FSA environmental review of these types of proposed actions.
The next section of this document explains the new categories of CatExs. Examples of CatEx proposed actions specified in § 799.31 that do not require review include many loan-related proposed actions, fence repair, and maintenance of existing buildings. For those proposed actions, instead of a full review, FSA staff will simply use the ESW form to record the specific CatEx being used and to ensure that no extraordinary circumstances exist.
The proposed actions specified in § 799.32 of this rule may be categorically excluded depending on the outcome of the review documented in the ESW. Those CatEx proposed actions require a review using an ESW to determine if extraordinary circumstances exist that require further environmental review. Examples of these proposed actions that will be analyzed with a review using an ESW include loan transfers with planned new land disturbance and fence installation.
Extraordinary circumstances, as specified in this rule, are considered in the context of a specific action and include situations with potentially significant impacts. If such circumstances do exist, then an EA is required for a proposed action that would otherwise be categorically excluded.
For all proposed actions for which there is no applicable CatEx, if necessary, the ESW can be used to determine whether an EA or an EIS is the next step in the NEPA process, but the ESW is not required if it is clear to FSA that an EA or EIS is required.
USDA agencies and other Federal agencies have similar environmental screening tools (for example, USDA's Natural Resources Conservation Service (NRCS) and Rural Development, the Department of Energy, the Department of Defense). FSA reviewed those screening tools and considered these agencies' approaches during development of the ESW. For the purposes of this rule, references to the ESW also refer to alternate documentation comparable to the ESW and that has been approved in advance by the FSA National Environmental Compliance Manager, such as related environmental documentation, including, but not limited to, the related documentation from NRCS or another agency.
The ESW replaces the previous form FSA-850, “Environmental Evaluation Checklist” document and the RD-1940-22 form, which local FSA staff and County Office Committee reviewers have found to be outdated and confusing. The new, more concise ESW is designed to be applied consistently and provide a more transparent review of anticipated environmental effects.
This final rule specifies the situations in which the ESW will be used by FSA. The ESW will be completed by FSA field office personnel during the review of an application for any FSA program, unless the program is categorically excluded from further environmental review as shown by the CatEx recorded on the ESW, or unless FSA receives technical assistance with the environmental review from USDA or another Federal agency that can be used in place of the ESW. For example, FSA often receives technical assistance from NRCS, which uses its own review form. The NRCS form provides the same information as the ESW and therefore is used instead of the ESW when NRCS supplies FSA technical assistance. The use of the new FSA ESW as specified in this rule is expected to make overall proposed action planning and project-specific environmental reviews more timely and cost effective. It is also expected to provide more clarity and transparency to the environmental review process.
This rule updates and clarifies the CatEx requirements that apply to FSA programs and groups those requirements in a new subpart. Consistent with CEQ regulations, subpart D of the rule specifies that a CatEx is an agency proposed action that normally has no individual or
The proposed rule requested public comment on all of the proposed CatExs. After reviewing and incorporating clarifications based on comments received, this rule adds all such proposed actions that should have been categorically excluded. Adding the specific list of CatExs to the FSA NEPA regulation adds clarity and transparency to the NEPA process by consolidating all FSA CatExs in a single regulation.
Some of the CatExs in this rule are similar to the CatExs of other Federal agencies and reflect FSA's experience with similar factual circumstances. For example, the proposed action of “fencing” is a proposed action that FSA has categorized as a CatEx that also has been identified as a CatEx by other agencies, including the Departments of Energy and Interior, in their NEPA implementing regulations. It has also been documented in several FSA EISs for the Emergency Conservation Program to have no significant impact on the environment. Other new CatExs are more specific to FSA and reflect FSA's past experience with similar factual circumstances. These CatExs have been found to have no potential to produce significant impacts, individually or cumulatively, on the human environment based on past NEPA documentation by FSA environmental experts and their review of the impacts for implementing those proposed actions. For example, many of the loan program proposed actions conducted by FSA, such as refinancing, closing cost payments, and deferral of loan payments, have been shown consistently to have no potential to significantly impact the human environment as a result of the FSA proposed action, individually or cumulatively. In addition, those proposed actions were previously categorically excluded in 7 CFR 1940.310(e)(2) as loan closing and servicing activities.
There are many CatExs in this rule that are excluded on the basis of the location where the specific proposed actions are to occur. For example, various proposed actions that would take place within previously disturbed or developed farmland, and proposed actions on land where the former state of the area and its ecological functions have already been altered, are appropriate for a CatEx. These also include proposed actions on land that has been previously cultivated, as long as the new proposed action would not disturb below the plow zone, and amount to very limited disturbance. The Department of Energy uses this same “previously disturbed ground” criteria as an integral component of their CatExs.
This rule separates FSA proposed actions into three broad categories with regard to CatExs and any further required environmental review. As explained below, these three categories are proposed actions that:
(1) Are automatically excluded from further environmental review without further documentation (beyond recording the specific CatEx on the ESW for the administrative record),
(2) Require review using the ESW, but may be excluded from further environmental review based on the result of the ESW, or
(3) Are not excluded and require further environmental review (EA or EIS) because they fall into one of the following groups:
• First, those proposed actions that are categorically excluded from further environmental review without documentation, beyond recording the specific CatEx on the ESW for the administrative record. There are a total of 66 of these types of proposed actions in this rule, and includes proposed actions such as paying loan closing costs, refinancing debt, and a payment to support commodity prices with no requirement for any proposed action on part of the recipient. FSA may also add additional CatExs to the regulations in the future. As specified in this rule and discussed below, future CatExs would be proposed in the
• Second, those proposed actions that are considered as CatExs so long as they are reviewed and documented with an ESW. Extraordinary circumstances, as specified in this rule in § 799.33, are unique to a specific proposed action and include situations where a proposed action has potential impacts. The review for the presence or absence of such extraordinary circumstances will be documented by the completion of the ESW. There are a total of 24 of these proposed actions in this rule, including proposed actions such as loans for livestock purchases, construction in previously disturbed areas, grading, shaping, leveling, and refilling. These are categories of proposed actions where such extraordinary circumstances with the potential for environmental impacts have rarely resulted in potential effects. But, due to the potential for impacts, a review using the ESW is necessary to determine that no extraordinary circumstances exist.
• Third, those proposed actions that typically have the potential to have a significant impact on the human environment but for which, as a general matter, mitigation measures can be applied to decrease the level of significance to support a Finding of No Significant Impact. For those proposed actions, an environmental review in the form of an EA or EIS will be required and a CatEx will not be considered. If the context and intensity of the impacts are uncertain, these could be analyzed by completing the ESW and using the results to determine the need for an EA or an EIS. Otherwise, the ESW step can be skipped and the proposed action addressed using an EA or EIS, as appropriate. There are a total of 46 of these proposed actions and include proposed actions such as pond planning and construction, dike planning and construction, and operating loans for proposed actions with demolition or construction planned. As is true for every FSA proposed action, if a property is deemed historic, these proposed actions are also considered as undertakings that have the potential to affect a historic property and will therefore be subject to section 106 of the National Historic Preservation Act (NHPA; 54 U.S.C. 306108). Consultation with the State Historic Preservation Officer (SHPO), Tribal Historic Preservation Officer (THPO), Tribal governments, and the affected public will be conducted, as appropriate, based on the location, nature, and scale of the proposed action. This is also true if a proposed action has the potential to impact species or habitats listed under the Endangered Species Act (ESA) (16 U.S.C. 1531 through 1544); consultation is required with the U.S. Fish and Wildlife Service or National Marine Fisheries Service, or both, as appropriate. Other consultations or reviews may be needed, given the
As specified in § 799.34 of this rule and the CEQ regulations in 40 CFR 1507.3, FSA is required to publish a document in the
The inclusion in the regulations of CatExs that were previously not explicitly listed as CatExs in the FSA NEPA regulations, but were previously documented as CatExs in their corresponding program regulations and FSA handbooks, will increase transparency and clarity of FSA's NEPA process. The new CatExs that this rule adds to the regulation, and the new ESW, will reduce the time and effort required for the environmental review of proposed actions that in the past required EAs, but almost always resulted in FONSIs as the result of the EAs.
The previous FSA NEPA regulations in 7 CFR part 1940, subpart G, have two categories of Environmental Assessments (Class I and Class II). As currently specified by CEQ, there is no variation on EA requirements; for example, a checklist does not meet the definition of an EA (40 CFR 1508.9). This regulation has only one category of Environmental Assessment, which makes the FSA NEPA process consistent with the CEQ regulations and less complex than previously. This is a substantive change in the regulation, but not in the existing process.
The previous FSA Farm Programs NEPA regulations in 7 CFR part 799 do not specify the types of proposed actions for which an EA is required. This rule now includes a specific list of proposed actions for which an EA is normally required, in addition to the previously discussed list of CatExs where an ESW may be needed to determine if an EA is required (see 7 CFR 799.31 and 799.32, respectively). This rule also specifies the information that must be included in an EA (see 7 CFR 799.42). These provisions help add clarity to the NEPA process.
This rule adds criteria for developing a PEA if proposed actions in a program individually have an insignificant environmental impact, but cumulatively could have a significant impact (see 7 CFR 799.40(c)). FSA has performed PEAs in the past in conformance with CEQ requirements, but the previous FSA regulations did not specify the procedures for doing so. FSA's PEAs are broad NEPA documents that examine a program or policy on a larger scale and provide an analytical framework to examine environmental impacts in a comprehensive manner, while providing the basis for future proposed actions and site-specific analyses (“tiering”). The PEA process eliminates the need to review and prepare an ESW for each of the individual incentives to provide public access or to implement public access-related activities for any single parcel of land in a State. The PEA process:
• Allows FSA to identify similar proposed actions that share common issues, timing or geography;
• Provides a framework for future tiered analyses to be consistent with one another; shortens development time; and
• Reduces funding needs while streamlining or eliminating the environmental review process for certain individual proposed actions analyzed in the PEA.
The use of the updated CatEx lists will likely substantially reduce the number of EAs that FSA is required to complete in a year, as compared to the number of EAs that FSA has completed in the past. The expected reduction in the number of EAs will depend on the finding of no extraordinary circumstances during the ESW review, and in some cases the ESW process could result in a finding that an EA is required. Specifically, many Farm Loan Programs proposed actions that previously required an EA will be categorically excluded with documentation required using the new ESW process. Some will be categorically excluded as recorded on the ESW without requiring additional supporting documentation.
This rule includes a new subpart on the EIS process that consolidates EIS requirements from the previous regulations, and more specifically describes the processes involved. As specified in this rule and as required by NEPA and CEQ regulations, an EIS is required for the following four types of proposed actions:
• Legislative proposals, not including appropriations requests, drafted and submitted to Congress by FSA, that have the potential to have significant impact on the quality of the human environment, as specified in 40 CFR 1506.8;
• Regulations for new and substantively discretionary programs, if through the preparation of an ESW or EA, as appropriate, FSA has determined that an EIS is necessary;
• Broad Federal assistance programs administered by FSA involving significant financial assistance for ground disturbing activities or payments to program participants that may have significant cumulative impacts on the human environment or national economy; and
• Ongoing programs that have been found through previous environmental analyses to have major environmental concerns.
These four categories of proposed actions, while more clearly defined in this rule than in the previous regulations, are substantially similar to the requirements in the previous NEPA regulations for FSA Farm Programs in 7 CFR part 799. The previous NEPA regulations for FSA Farm Loan Programs in 7 CFR part 1940, subpart G, specify some general criteria for determining if an EIS is needed, with an emphasis on the location of the proposed action (for example, floodplains, wetlands). This rule clarifies the requirements for an EIS, but is not intended to substantively change when an EIS is required. This rule is not expected to result in a change in the number of EISs that FSA conducts each year. This rule explains more clearly the procedures and process FSA will follow when preparing an EIS, including specific requirements for the information that must be included in an EIS. This rule also adds specific information on the process for developing a programmatic EIS (PEIS), which was previously specified in FSA handbooks rather than the regulations. As noted earlier, much of that process has already been implemented administratively.
This final rule consolidates and reorganizes the provisions previously in 7 CFR parts 799 and 1940, subpart G, into a revised 7 CFR part 799, adds longer and more specific lists of CatExs and of proposed actions requiring EAs, and adds new provisions to comply with current CEQ regulations. As discussed below, additional minor changes and clarifications were made based on comments received on the proposed rule. The following table summarizes how the major provisions in this regulation compare to similar provisions in the previous regulations.
Many of the changes in this rule are essentially minor, technical, and clarifying changes; some changes reorganize the requirements from the previous regulations. This section discusses the technical and structural changes to the regulations that are intended to increase clarity and remove obsolete provisions, but do not change requirements for the public or change the environmental review processes administratively.
All of the definitions that apply to NEPA implementation for FSA Farm Programs, Farm Loan Programs, and CCC programs administered by FSA are now in § 799.4. In addition to the definitions already in the previous regulations, this rule adds definitions
Similarly, for consistency within USDA, the definition for “consultation” in this rule includes the process of considering the views of other participants in the environmental review process and working toward agreement where feasible. This is consistent with how other USDA agencies (for example, NRCS) define “consultation” in their NEPA regulations.
All of the FSA NEPA compliance responsibilities are specified in 7 CFR part 799. The regulation clarifies who is responsible for NEPA and NHPA compliance at the national level by specifying that the Administrator or designee will appoint a National Environmental Compliance Manager as required by 40 CFR 1507.2(a), and a Federal Preservation Officer as required by section 110 of NHPA (54 U.S.C. 306101) and Executive Order 13287. These are not new responsibilities; this rule simply clarifies the requirements. To update the previous position titles in FSA, the FSA positions previously referred to as “State Director” are now referred to as “State Executive Director.” Other revised provisions clarify the role of the State Environmental Coordinator, to be consistent with current practice.
The requirements for CatExs, EAs, and EISs are organized into separate subparts, so that it is clearer which requirements and processes apply to each type of environmental review. For example, the section on “tiering,” a process that is relevant to the EA and EIS processes, but not used for CatExs, will be included in the EA and EIS provisions, but the requirements for “tiering” will not change.
Many of the changes in this rule remove obsolete provisions and terminology. For example, references to agencies that no longer exist have been removed and replaced with current references. This rule also removes references to programs that no longer exist (such as the Agricultural Conservation Program, Water Bank Program, Tobacco Production Adjustment Program, Bee Indemnity Program, and Naval Stores Program), replacing them with more general provisions that apply to types of programs and proposed actions rather than to specific programs. These changes make the regulations clearer, more transparent, and up to date, but are not substantive changes and should have no impact on the environmental review process.
The previous regulations in 7 CFR parts 799 and 1940, subpart G, have numerous exhibits and appendices. These include obsolete forms and obsolete organizational charts. This rule removes those exhibits and appendices, which does not change the existing process because these items are no longer used. In § 799.1, “Purpose,” this rule adds references to several dozen relevant environmental laws, Executive Orders, and regulations that were developed since the previous regulations were published. References to departmental regulations previously listed in appendices to 7 CFR part 1940 have also been moved to this list of references. FSA is already required to comply with these laws, Executive Orders, departmental regulations, and regulations of other agencies, so listing all of the relevant references in one consolidated section will not be a change to the existing practice.
In addition to the changes discussed above, a number of changes needed to be made in other related FSA regulations to update references to the appropriate NEPA regulations. Throughout the FSA regulations, this rule updates references to NEPA regulations and environmental compliance to refer to 7 CFR part 799. This rule removes environmental compliance sections that are now redundant. For example, the separate environmental compliance section for the Farm Storage Facility Loan Program, which was in 7 CFR part 1436, is not necessary because that program is subject to the same environmental compliance requirements as every other FSA program.
Along with the changes to the regulations, FSA will make conforming changes to any references to 7 CFR part 1940, subpart G in, for example, forms and handbooks.
The 90-day comment period for the proposed rule ended December 2, 2014. FSA received 24 comments on the proposed rule. Comments were received from farming and food safety organizations, government agencies, financial institutions, and private individuals. Some of the comments received reflected misunderstandings of FSA's current and proposed NEPA processes, which are now clarified in this rule as discussed below. Other comments suggested specific changes, which are discussed below.
The following discussion summarizes the issues raised by commenters and FSA's responses to those comments.
CAFO's represent an important part of modern American agriculture; therefore, FSA lending for new or expanded CAFO operations is consistent with FSA's stated vision of providing economic opportunity through innovation, helping rural America thrive; promoting agriculture production; as well as being in step with its stated mission of fostering a market-oriented, economically, and environmentally sound American agriculture delivering an abundant, safe, and affordable food and fiber supply while sustaining quality agricultural communities. No change is being made in response to this comment.
• Land clearing,
• Commercial facilities and structures,
• Minor planting and management, and
• Pesticides and fertilizers.
• Land clearing § 799.41(a)(5),
• Commercial facilities and structures § 799.41(a)(8), and
• Pesticides and fertilizers § 799.31(b)(5)(vi).
In addition to the changes discussed above, during the development of this final rule and in keeping with the overall nature of the changes and clarifications made in response to the public comments, we determined that the following changes need to be made to the rule:
• Removed references to NHPA throughout the rule, as impacts to NHPA-governed resources are included as an extraordinary circumstance in § 799.33(e)(1).
• Amended the definition of floodplains under § 799.4(b) to be consistent with the new Executive Order 13690.
• Clarified in § 799.2(a)(2) FSA's commitment to resource protection.
• Clarified and broadened public notice options specified in § 799.2(a)(4).
• Clarified in § 799.2(b) that a proposed action can be categorically excluded only if all the components of the proposed action are considered CatExs, and no extraordinary circumstances are triggered, and that the component triggering the highest level of NEPA review dictates the overall level of review for the proposed action.
• Clarified in § 799.6(a)(2) the requirement to appoint SECs.
• Clarified FSA program participant responsibilities in § 799.7(a)(7) through (10).
• Removed a provision in § 799.7(c), which had been proposed, requiring FSA to provide information to participants regarding the level of information required for evaluating proposed actions, as these responsibilities are internal, need to remain flexible to adapt to changing external requirements, could mislead participants regarding the level of review needed for their proposed action, and may need to be state- or locally-specific.
• Clarified in § 799.12(d) the environmental compliance requirements for emergency actions to address immediate post-emergency health or safety hazards.
• Clarified in § 799.15(d) the notification requirements for the opportunity for the public to review of FONSIs in the certain limited circumstances as specified in CEQ regulations in 40 CFR 1501.4(e)(2)(i) through (ii).
• Clarified in § 799.17(b)(4) that the FSA Administrator can decide if public meetings are needed for a given proposed action.
• Clarified in § 799.18 and throughout when the ESW or related environmental documentation, for example, the related NRCS form, is required. The use of the ESW depends on whether the appropriate CatExs covering a given FSA proposed action are in §§ 799.31 or 799.32. For those CatExs listed in § 799.31, the ESW is used to record the CatEx. For those CatExs listed in § 799.32, the ESW is used to review the proposed action to determine if the CatEx applies or if there are extraordinary circumstances.
• Moved a CatEx in § 799.31 from the paragraph covering administrative actions to the paragraph covering repair, improvement, or minor modification proposed actions.
• Added “minor management” and “minor construction” to the heading of § 799.32(c)(2) for consistency with the actual CatExs included in the category.
• Moved “nutrient management” from § 799.31 to § 799.32 for consistency with the potential for environmental impacts.
• Clarified in § 799.32(d)(2) that an ESW is not needed if it is already known, based on anticipated impacts, that an EA or EIS is needed.
• Clarified in § 799.33(b)(4) that a violation of a Federal, State, or local law or policy is an extraordinary circumstance that prevents the use of the ESW.
• Clarified provisions in § 799.41(a)(7) for consistency with the requirements for a Concentrated Aquatic Animal Production Facility (CAAP), as defined by the U.S. Environmental Protection Agency in 40 CFR 122.24-25.
• Clarified in § 799.41(a)(8) that commercial facilities or structures are those used for processing or handling of farm production or for public sales.
• Clarified in § 799.41(a)(10) the refinancing proposed actions involving large CAFOs and specifically, that an EA is required if the CAFO has been in operation for 24 months or less. This was changed from 12 months to avoid any potential circumvention of federal environmental compliance requirements.
• Clarified in § 799.41(a)(11) through (12) that an EA is required for new rules only when they are substantively discretionary.
• Clarified in § 799.41(b) that proposed actions that do not meet the thresholds defined in § 799.41(a) and are not listed in §§ 799.31 or 799.32, require review using the ESW to determine if an EA or EIS is warranted.
• Clarified in § 799.42(c) FSA's role in applicant-prepared EAs.
In general, the Administrative Procedure Act (5 U.S.C. 553) requires that before rules are issued by Government agencies, the rule must be published in the
Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Management and Budget (OMB) designated this final rule as not significant under Executive Order 12866, “Regulatory Planning and Review,” and has therefore not reviewed this rule.
Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. Comments were solicited as part of the proposed rule process and clarifications have been made to the text of this regulation as a result of the comments received.
The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Even though a proposed rule was published for this rulemaking initiative, this rule is not subject to the Regulatory Flexibility Act because the agencies were not required by any law to publish a proposed rule for public comments for this rulemaking.
The Council on Environmental Quality regulations do not direct agencies to prepare an environmental review or document before establishing Agency procedures (such as this regulation) that supplement the CEQ regulations for implementing NEPA. Agencies are required to adopt NEPA procedures that establish specific criteria for, and identification of, three classes of proposed actions:
(1) Those that normally require preparation of an environmental impact statement;
(2) Those that normally require preparation of an environmental assessment; and
(3) Those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)).
CatExs are one part of those agency procedures, and therefore establishing CatExs does not require preparation of an environmental review or related document. Agency NEPA procedures are procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA, but are not the agency's final determination of what level of environmental review is required for a particular proposed action. The requirements for establishing agency NEPA procedures are specified in 40 CFR 1505.1 and 1507.3. The determination that establishing CatExs does not require environmental review and related documentation has been upheld in
Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed Federal financial assistance. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal Financial assistance and direct Federal development. This rule does not provide grants, cooperative agreements, or any other benefits. Therefore, FSA has concluded that this rule does not require consultation with State and local officials as when USDA provides Federal financial assistance or direct Federal development (see 7 CFR 3015.307). Therefore, this rule is not subject to Executive Order 12372.
This rule has been reviewed in accordance with Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. The rule will not have retroactive effect. Before any judicial action may be brought regarding the provisions of this rule, all administrative appeal provisions in 7 CFR parts 11 and 780 must be exhausted.
This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on 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, except as required by law. Nor will this rule impose substantial direct compliance costs on State and local governments. The provisions in this rule may impose compliance costs on State and local governments, but these are not new costs, as the provisions in this rule have already been implemented as required by per various Executive Orders, laws, and CEQ regulations. Therefore, consultation with the States is not required.
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.
FSA 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 Executive Order 13175. To ensure this, with assistance from the USDA Office of Tribal Relations, FSA engaged in Tribal consultation in 2014 jointly with the USDA Rural Development Mission Area, who also amended their NEPA regulations. No comments were received as a result of this consultation. If a Tribe requests additional consultation, FSA will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided.
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments, or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule does contains no Federal mandates, as defined in Title II of UMRA, for State, local, or Tribal governments or for the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
This rule is not a major rule under SBREFA (Pub. L. 104-121). Therefore, there is no requirement to delay the effective date for 60 days from the date of publication to allow for Congressional review. This rule is effective on the date of publication in the
This rule applies to all Farm Service Agency Federal assistance programs found in the Catalog of Federal Domestic Assistance.
Previously, as specified in 7 CFR 1940.350, the OMB control number approving the NEPA information collection for FSA and the Rural Development agencies was 0575-0094. The changes to the regulation eliminate FSA's use of the form, RD-1940-22, Request for Environmental Information, previously used by FSA and included in that approval. In the past, financial institutions completed the form RD-1940-22 and submitted the form to FSA; that process has been revised and that form is no longer used. The burden hours will be reduced by 1,050 hours for this change in OMB 0575-0094 when that is renewed.
The FSA NEPA regulation does not have any information collection activities related to the NEPA process. The appropriate FSA employee gathers information from soil maps, wetland maps, etc., then may visit the site. The FSA employee uses the ESW form, which is an internal form within FSA only. The ESW is completed by the appropriate FSA staff, with relevant information from one or more of the existing FSA forms with information collection approval. There is no information collection burden for this rule because it is associated with application for or participation in one or
As noted in § 799.42(c), FSA may request that a program participant provide information for use in an EA. That supplemental information will be case specific; the primary information comes from the information the applicant gave to the program itself (already covered by the relevant OMB control number for the respective FSA or CCC program) and site visits. Any additional information will be specific to the action in question. Therefore, it does not require additional approval under the Paperwork Reduction Act (44 U.S.C. chapter 35) for this rule.
FSA is committed to complying with the E-Government Act, 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.
Accounting, Loan programs—agriculture, Rural areas.
Agriculture, Banks, Banking, Credit, Loan programs—agriculture, Reporting and recordkeeping requirements.
Agriculture, Banks, Banking, Credit, Loan programs—agriculture.
Agriculture, Disaster assistance, Loan programs—agriculture.
Agriculture, Agricultural commodities, Credit, Livestock, Loan programs—agriculture.
Agriculture, Agricultural commodities, Credit, Livestock, Loan programs—agriculture.
Agriculture, Credit, Government property, Government property management, Indians—loans, Loan programs—agriculture.
Credit, Indians, Loan programs—agriculture, Reporting and recordkeeping requirements.
Agriculture, Credit, Loan programs—agriculture, Rural areas.
Apples, Loan programs—agriculture.
Loan programs—agriculture, Seeds.
Environmental impact statements.
Administrative practice and procedure, Loan programs—agriculture, Penalties, Price support programs, Reporting and recordkeeping requirements.
Agriculture, Environmental protection, Flood plains, Grant programs—agriculture, Grant programs—housing and community development, Loan programs—agriculture, Loan programs—housing and community development, Low and moderate income housing, Reporting and recordkeeping requirements, Rural areas, Truth in lending.
For the reasons discussed above, the regulations in 7 CFR chapters VII, XIV, and XVIII are amended as follows:
5 U.S.C. 301 and 7 U.S.C. 1989.
5 U.S.C. 301 and 7 U.S.C. 1989.
5 U.S.C. 501 and 7 U.S.C. 1989.
5 U.S.C. 301 and 7 U.S.C. 1989.
5 U.S.C. 301 and 7 U.S.C. 1989.
5 U.S.C. 301, 7 U.S.C. 1989, and 1981d(c).
5 U.S.C. 301 and 7 U.S.C. 1989.
5 U.S.C. 301 and 25 U.S.C. 488.
5 U.S.C. 301, 7 U.S.C. 1989, and 25 U.S.C. 490.
Pub. L. 106-224.
Pub. L. 106-224.
42 U.S.C. 4321-4370.
(a) This part:
(1) Explains major U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) environmental policies.
(2) Establishes FSA procedures to implement the:
(i) National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321 through 4370);
(ii) Council on Environmental Quality (CEQ) regulations (40 CFR parts 1500 through 1518); and
(iii) USDA NEPA regulations (§§ 1b.1 through 1b.4 of this title).
(3) Establishes procedures to ensure that FSA complies with other applicable laws, regulations, and Executive Orders, including, but not limited to, the following:
(i) American Indian Religious Freedom Act (42 U.S.C. 1996);
(ii) Archaeological and Historic Preservation Act (16 U.S.C. 469 through 469c);
(iii) Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa through 470mm);
(iv) Clean Air Act (42 U.S.C. 7401 through 7671q);
(v) Clean Water Act (33 U.S.C. 1251 through 1387);
(vi) Coastal Barrier Resources Act (16 U.S.C. 3501 through 3510);
(vii) Coastal Zone Management Act of 1972 (CZMA) (16 U.S.C. 1451 through 1466);
(viii) Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601 through 9675);
(ix) Endangered Species Act (ESA) (16 U.S.C. 1531 through 1544);
(x) Farmland Protection Policy Act (7 U.S.C. 4201 through 4209);
(xi) Migratory Bird Treaty Act (16 U.S.C. 703 through 712);
(xii) National Historic Preservation Act (NHPA) of 1966, as amended (54 U.S.C. 300101 through 307101),
(xiii) Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 through 3013);
(xiv) Resource Conservation and Recovery Act (42 U.S.C. 6901 through 6992k);
(xv) Safe Drinking Water Act (42 U.S.C. 300h through 300h.8);
(xvi) Wild and Scenic Rivers Act (16 U.S.C. 1271 through 1287);
(xvii) Wilderness Act (16 U.S.C. 1131 through 1136);
(xviii) Advisory Council on Historic Preservation regulations in 36 CFR part 800 “Protection of Historic Properties;”
(xix) USDA, Office of Environmental Quality regulations in part 3100 of this title, “Cultural and Environmental Quality” (see part 190, subpart F, of this title, “Procedures for the Protection of Historic and Archaeological Properties,” for more specific implementation procedures);
(xx) USDA, Natural Resources Conservation Service regulations in part 658 of this title, “Farmland Protection Policy Act;”
(xxi) USDA regulations in part 12 of this title, “Highly Erodible Land and Wetland Conservation;”
(xxii) U.S. Department of the Interior, National Park Service regulations in 36 CFR part 60, “National Register of Historic Places;”
(xxiii) U.S. Department of the Interior, National Park Service regulations in 36 CFR part 63, “Determinations of Eligibility for Inclusion in the National Register of Historic Places;”
(xxiv) USDA, Departmental Regulation 9500-3, “Land Use Policy;”
(xxv) USDA, Departmental Regulation 9500-4, “Fish and Wildlife Policy;”
(xxvi) Executive Order 11514, “Protection and Enhancement of Environmental Quality;”
(xxvii) Executive Order 11593, “Protection and Enhancement of the Cultural Environment;”
(xxviii) Executive Order 11988, “Floodplain Management;”
(xxix) Executive Order 11990, “Protection of Wetlands;”
(xxx) Executive Order 11991, “Relating to Protection and Enhancement of Environmental Quality;”
(xxxi) Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations;”
(xxxii) Executive Order 13007, “Indian Sacred Sites;”
(xxxiii) Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments;”
(xxxiv) Executive Order 13186, “Responsibilities of Federal Agencies to Protect Migratory Birds;”
(xxxv) Executive Order 13287, “Preserve America;” and
(xxxvi) Executive Order 13690, “Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input.”
(b) The procedures and requirements in this part supplement CEQ and USDA regulations; they do not replace or supersede them.
(a) FSA will:
(1) Use all practical means to protect and, where possible, improve the quality of the human environment and avoid or minimize any adverse environmental effects of FSA actions;
(2) Ensure protection of basic resources, including important farmlands and forestlands, prime rangelands, wetlands, floodplains, and other protected resources. Consistent with Departmental Regulations and related Executive Orders, it is FSA policy not to approve or fund proposed actions that, as a result of their identifiable impacts, direct, indirect, or cumulative, would lead to or accommodate either the conversion of these land uses or encroachment upon them.
(3) Ensure that the requirements of NEPA and other State and national environmental policies designed to protect and manage impacts on the human environment are addressed:
(i) As required by 40 CFR 1501.2, at the earliest feasible stage in the planning of any FSA action,
(ii) Concurrently and in a coordinated manner,
(iii) During all stages of the decision making process,
(iv) Using professional and scientific integrity in their discussions and analyses, identifying applicable methodologies, and explaining the use of the best available information, and
(v) In consultation with all interested parties, including Federal, State, and Tribal governments;
(4) As appropriate, make environmental review available to the public through various means, which can include, but are not limited to: Posting on the National FSA Web site or a State FSA Web site, publishing in the
(5) Ensure that, if an FSA proposed action represents one of several phases of a larger action, the entire action is the subject of an environmental review independent of the phases of funding. If the FSA proposed action is one segment of a larger action, the entire action will be used in determining the appropriate level of FSA environmental review.
(b) A proposed action that consists of more than one categorically excluded proposed action may be categorically excluded only if all components of the proposed action are included within one or more categorical exclusions and trigger no extraordinary circumstances. The component of a proposed action that requires the highest level of NEPA review will be used to determine the required level of the NEPA review.
(a) Except as provided for in paragraph (b) of this section, this part applies to:
(1) The development or revision of FSA rules, regulations, plans, policies, or procedures;
(2) New or continuing FSA proposed actions and programs, including, on behalf of the Commodity Credit Corporation (CCC), CCC programs, Farm Loan Programs, and Farm Programs; and
(3) FSA legislative proposals, not including appropriations requests, developed by FSA or with significant FSA cooperation and support.
(b) This part does not apply to FSA programs specifically exempted from environmental review by the authorizing legislation for those programs.
(a) The following abbreviations apply to this part:
(b) The definitions in 40 CFR part 1508 apply and are supplemented by parts 718 and 1400 of this title; in the event of a conflict the definitions in this section will be controlling. In addition, the following definitions apply to this part:
(a) The FSA Administrator or designee:
(1) Is the Responsible Federal Officer (RFO) for FSA compliance with applicable environmental laws, regulations, and Executive Orders, including NEPA, and unless otherwise specified, will make all determinations under this part;
(2) Will ensure responsibilities for complying with NEPA are adequately delegated to FSA personnel within their areas of responsibility at the Federal, State, and county levels;
(3) Will appoint a National Environmental Compliance Manager (NECM), as required by 40 CFR 1507.2(a), who reports directly to the FSA Administrator; and
(4) Will appoint a qualified Federal Preservation Officer (FPO), as required by Executive Order 13287 “Preserve America” section 3(e) and by section 110 of NHPA (54 U.S.C. 306101). This individual must meet the National Park Service professional qualification standards requirements referenced in 36 CFR part 61 and will report directly to the NECM.
(b) The NECM or designee coordinates FSA environmental policies and reviews under this part on a national basis and is responsible for:
(1) Ensuring FSA legislative proposals and multistate and national programs are in compliance with NEPA and other applicable environmental and cultural resource laws, regulations, and Executive Orders;
(2) Providing education and training on implementing NEPA and other environmental compliance requirements to appropriate FSA personnel;
(3) Serving as the principal FSA advisor to the FSA Administrator on NEPA and other environmental compliance requirements;
(4) Representing FSA, and serving as an intra- and inter-agency liaison, on NEPA- and environmental compliance-related matters on a national basis;
(5) Maintaining a record of FSA environmental compliance actions; and
(6) Ensuring State and county office compliance with NEPA and other applicable environmental laws, regulations, and Executive Orders.
(c) The FPO or designee coordinates NHPA compliance under this part and is responsible for:
(1) Serving as the principal FSA advisor to the NECM on NHPA requirements;
(2) Representing FSA, and serving as FSA intra- and inter-agency liaison, on all NHPA-related matters on a national basis;
(3) Maintaining current FSA program guidance on NHPA requirements;
(4) Maintaining a record of FSA environmental actions related to the NHPA; and
(5) Ensuring State and county office compliance with the NHPA and other cultural resource-related requirements.
(a) FSA State Executive Directors (SEDs) or designees are the responsible approving officials (RAOs) in their respective States and are responsible for:
(1) Ensuring FSA proposed actions within their State comply with applicable environmental laws, regulations, and Executive Orders, including NEPA; and
(2) Appointing two or more collateral duty State Environmental Coordinators (SECs) or at least one full time SEC.
(b) An SED will not appoint more than one SEC for Farm Programs and one SEC for Farm Loan Programs in a State unless approved in writing by the NECM.
(c) SECs or designees are responsible for:
(1) Serving as the environmental compliance coordinators on all environmental-related matters within their respective State;
(2) Advising SEDs on environmental issues;
(3) Providing training, in coordination with the NECM, on NEPA and other environmental compliance requirements to appropriate FSA State and county office personnel;
(4) Providing assistance on environmental-related matters on a proposed action-by-action basis to State and county office personnel, as needed;
(5) When feasible, developing controls for avoiding or mitigating adverse environmental impacts and monitoring the implementation of those controls;
(6) Reviewing FSA proposed actions that are not categorically excluded from documentation in an environmental assessment or environmental impact statement, or that otherwise require State office approval or clearance, and making appropriate recommendations to the approving official;
(7) Providing assistance to resolve post-approval environmental issues at the State office level;
(8) Maintaining decision records for State office environmental compliance matters;
(9) Monitoring their respective State's compliance with environmental laws, regulations, and Executive Orders;
(10) Acting as a liaison on FSA State office environmental compliance matters with the public and other Federal, State, and Tribal governments;
(11) Representing the SED on environmental issues, as requested;
(12) Delegating duties under this section with the approval of both the SED and NECM; and
(13) Other NEPA and environmental compliance-related duties as assigned.
(d) County Executive Directors, District Directors, and Farm Loan Programs loan approval officers or designees are responsible for compliance with this part within their geographical areas.
(a) Potential FSA program participants requesting FSA assistance must do all of the following:
(1) Consult with FSA early in the process about potential environmental concerns associated with program participation. The program participation information required to start participation in an FSA program varies by FSA program and may be in the form of an offer, enrollment, sign-up, contract, note and security agreement, or other as is required by the relevant FSA program.
(2) Submit applications for all Federal, regional, State, and local approvals and permits early in the planning process.
(3) Coordinate the submission of program participation information to FSA and other agencies (for example, if a conservation plan is required, then the program participation information is also submitted to USDA's Natural Resources Conservation Service).
(4) Work with other appropriate Federal, State, and Tribal governments to ensure all environmental factors are identified and impacts addressed and, to the extent possible, mitigated, consistent with how mitigation is defined in 40 CFR 1508.20.
(5) Inform FSA of other Federal, State, and Tribal government environmental reviews that have previously been completed or required of the program participant.
(6) Provide FSA with a list of all parties affected by or interested in the proposed action.
(7) If requested by FSA, provide information necessary for FSA to evaluate a proposed action's potential environmental impacts and alternatives.
(8) Ensure that all compliance documentation provided is current, sufficiently detailed, complete, and submitted in a timely fashion.
(9) Be in compliance with all relevant laws, regulations, and policies regarding environmental management and protection.
(10) Not implement any component of the proposed action prior to the completion of FSA's environmental review and final decision, or FSA's approval for that proposed action, consistent with 40 CFR 1506.1.
(b) When FSA receives program participation information for assistance or notification that program participation information will be filed, FSA will contact the potential program participant about the environmental information the program participant must provide as part of the process. This required information may include:
(1) Design specifications;
(2) Topographical, aerial, and location maps;
(3) Surveys and assessments necessary for determining the impact on protected resources listed in § 799.33(a)(2);
(4) Nutrient management plans; and
(5) Applications, plans, and permits for all Federal, regional, State and local approvals including construction permits, storm water run-off and operational plans and permits, and engineering designs and plans.
(a) In determining whether a proposed action will have a significant effect on the quality of the human environment, FSA will consider the proposed action's potential effects in the context of society as a whole, the affected region and interests, the locality, and the intensity of the potential impact as specified in 40 CFR 1508.27.
(b) [Reserved]
(a) FSA may prepare the following documents during the environmental review process:
(1) ESW;
(2) Programmatic Environmental Assessment (PEA);
(3) Environmental Assessment (EA);
(4) Supplemental Environmental Assessment;
(4) Programmatic Environmental Impact Statement (PEIS);
(5) Environmental Impact Statement (EIS);
(6) Supplemental Environmental Impact Statement (SEIS);
(7) Finding of No Significant Impact (FONSI);
(8) Record of Decision (ROD);
(9) Notice of Intent (NOI) to prepare any type of EIS;
(10) Notice of Availability (NOA) of environmental documents;
(11) Notice of public scoping meetings;
(12) Other notices, including those required under Executive Order 11988, “Floodplain Management,” Executive Order 13690, “Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input,” and Executive Order 11990, “Protection of Wetlands;”
(13) Memorandums of Agreement or Understanding (MOA or MOU), such as
(14) Environmental studies, as indicated and appropriate.
(b) [Reserved]
(a) FSA will maintain an administrative record of documents and materials that FSA created or considered during its NEPA decision making process for a proposed action and referenced as such in the NEPA documentation, which can include any or all the following:
(1) Any NEPA environmental review documents listed in § 799.9, as applicable;
(2) Technical information, permits, plans, sampling results, survey information, engineering reports, and studies, including environmental impact studies and assessments;
(3) Policies, guidelines, directives, and manuals;
(4) Internal memorandums or informational papers;
(5) Contracts or agreements;
(6) Notes of professional telephone conversations and meetings;
(7) Meeting minutes;
(8) Correspondence with agencies and stakeholders;
(9) Communications to and from the public;
(10) Documents and materials that contain any information that supports or conflicts with the FSA decision;
(11) Maps, drawings, charts, and displays; and
(12) All public comments received during the NEPA comment periods.
(b) The administrative record may be used, among other purposes, to facilitate better decision making, as determined by FSA.
(a) Except as specified in paragraphs (b) and (c) of this section, FSA or a program participant must not take any action, implement any component of a proposed action, or make any final decision during FSA's NEPA and environmental compliance review process that could have an adverse environmental impact or limit the range of alternatives until FSA completes its environmental review by doing one of the following:
(1) Determines that the proposed action is categorically excluded under NEPA under subpart D of this part and does not trigger any extraordinary circumstances; or
(2) Issues a FONSI or ROD under subpart E or F of this part.
(b) FSA may approve interim actions related to proposed actions provided the:
(1) Interim actions will not have an adverse environmental impact;
(2) Expenditure is necessary to maintain a schedule for the proposed action;
(3) Interim actions and expenditures will not compromise FSA's environmental compliance review and decision making process for the larger action;
(4) Interim actions and expenditures will not segment otherwise connected actions; and
(5) NEPA and associated environmental compliance review has been completed for the interim action or expenditure.
(c) FSA and program participants may develop preliminary plans or designs, or perform work necessary to support an application for Federal, State, or local permits or assistance, during the NEPA review process, provided all requirements in paragraphs (a) and (b) of this section are met.
(a) If emergency circumstances exist that make it necessary to take action to mitigate harm to life, property, or important natural, cultural, or historic resources, FSA may take an action with significant environmental impact without complying with the requirements of this part.
(b) If emergency circumstances exist, the NECM will consult with CEQ as soon as feasible about alternative NEPA arrangements for controlling the immediate impact of the emergency, as specified in 40 CFR 1506.11.
(c) If emergency circumstances exist, the FPO will follow the emergency procedures specified in 36 CFR 800.12 regarding preservation of historic properties, if applicable.
(d) FSA assistance provided in response to a Presidentially-declared disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, 42 U.S.C. 5121—5207, is exempt from NEPA requirements, as specified in 42 U.S.C. 5159. Under a Presidentially-declared disaster, the following actions to specifically address immediate post-emergency health or safety hazards are exempt from environmental compliance requirements:
(1) Clearing roads and constructing temporary bridges necessary for performing emergency tasks and essential community services;
(2) Emergency debris removal in support of performing emergency tasks and essential community services;
(3) Demolishing unsafe structures that endanger the public or could create a public health hazard if not demolished;
(4) Disseminating public information and assistance for health and safety measures;
(5) Providing technical assistance to State, regional, local, or Tribal governments on disaster management control;
(6) Reducing immediate threats to life, property, and public health and safety; and
(7) Warning of further risks and hazards.
(c) Proposed actions other than those specified in paragraph (d) of this section that are not specifically to address immediate post-emergency health or safety hazards require the full suite of environmental compliance requirements and are not exempt.
(a) When FSA acts as the lead agency in a NEPA review as specified in 40 CFR 1501.5, FSA will:
(1) Coordinate its review with other appropriate Federal, State, and Tribal governments; and
(2) Request other agencies to act as cooperating agencies as specified in 40 CFR 1501.6, and defined in 40 CFR 1508.5, as early in the review process as possible.
(b) If FSA acts as a lead agency for a proposed action that affects more than one State, the NECM will designate one SEC to act as RAO.
(c) If the role of lead agency is disputed, the NECM will refer the matter to the FSA Administrator, who will attempt to resolve the matter with the other agency. If the Federal agencies cannot agree which will serve as the lead agency, the FSA Administrator will follow the procedures specified in 40 CFR 1501.5(e) to request that CEQ determine the lead agency.
(a) FSA will act as a cooperating agency if requested by another agency, as specified in 40 CFR 1501.6 and defined in 40 CFR 1508.5. However, FSA may decline another agency's request if FSA determines the proposed action does not fall within FSA's area of expertise or FSA does not have jurisdiction by law. If FSA declines such a request to cooperate, that will be documented in writing to the requesting agency and a copy will be provided to CEQ.
(b) FSA may request to be designated as a cooperating agency if another agency's proposed action falls within FSA's area of expertise.
(a) FSA will involve the public in the environmental review process as early as possible and in a manner consistent with 40 CFR 1506.6. To determine the appropriate level of public participation, FSA will consider:
(1) The scale of the proposed action and its probable effects;
(2) The likely level of public interest and controversy; and
(3) Advice received from knowledgeable parties and experts.
(b) Depending upon the scale of the proposed action, FSA will:
(1) Coordinate public notices and consultation with the U.S. Fish and Wildlife Service, USDA's Natural Resources Conservation Service, Federal Emergency Management Agency, the National Marine Fisheries Service, the U.S. Army Corps of Engineers, and other agencies, as appropriate, if wetlands, floodplains, ESA-listed species, or other protected resources have the potential to be impacted;
(2) Make appropriate environmental documents available to interested partiesby request;
(3) Publish a Notice of Intent (NOI) to prepare an EIS, as specified in subpart F of this part; and
(4) Publish a Notice of Availability (NOA) of draft and final EISs and RODs, as specified in subpart F of this part.
(c) If the effects of a proposed action are local in nature and the scale of the proposed action is likely to generate interest and controversy at the local level, then in addition to the proposed actions specified in paragraphs (a) and (b) of this section, FSA will:
(1) Notify appropriate State, local, regional, and Tribal governments and clearinghouses, and parties and organizations, including the State Historic Preservation Officer (SHPO) and Tribal Historic Preservation Officer (THPO), known to have environmental, cultural, and economic interests in the locality affected by the proposed action; and
(2) Publish notice of the proposed action in the local media.
(d) Public review for 30 days for a FONSI is necessary if any of the limited circumstances specified in 40 CFR 1501.4(e)(2)(i) or (ii) applies.
(a) FSA will determine the appropriate scoping process for the environmental review of a proposed action based on the nature, complexity, potential significance of effects, and level of controversy of the proposed action.
(b) As part of its scoping process, FSA will:
(1) Invite appropriate Federal, State, and Tribal governments, and other interested parties to participate in the process, if determined necessary by FSA;
(2) Identify the significant issues to be analyzed;
(3) Identify and eliminate from further review issues that were determined not significant or have been adequately addressed in any prior environmental reviews;
(4) Determine the roles of lead and cooperating agencies, if appropriate;
(5) Identify any related EAs or EISs;
(6) Identify other environmental reviews and consultation requirements, including NHPA requirements and State, local, regional, and Tribal requirements, so they are integrated into the NEPA process;
(7) Identify the relationship between the timing of the environmental review process and FSA's decision making process;
(8) Determine points of contact within FSA; and
(9) Establish time limits for the environmental review process.
(c) FSA may hold public meetings as part of the scoping process, if appropriate and as time permits. The process that FSA will use to determine if a public scoping meeting is needed, and how such meetings will be announced, is specified in § 799.17.
(a) In consultation with the NECM, the SEC will determine if public meetings will be held on a proposed action to:
(1) Inform the public about the details of a proposed action and its possible environmental effects;
(2) Gather information about the public concerns; and
(3) Resolve, address, or respond to issues raised by the public.
(b) In determining whether to hold a public meeting, FSA will consider and determine whether:
(1) There is substantial controversy concerning the environmental impact of the proposed action;
(2) There is substantial interest in holding a public meeting;
(3) Another Federal agency or Tribal government has requested a public scoping meeting and their request is warranted; or
(4) The FSA Administrator has determined that a public meeting is needed.
(c) FSA will publish notice of a public meeting, including the time, date and location of the meeting, in the local media or
(d) If a NEPA document is to be considered at a public meeting, FSA will make the appropriate documentation available to the public at least 15 days before the meeting.
(a) FSA uses the ESW as an initial screening tool to evaluate record the use of a categorical exclusion for a proposed action and to determine the required type of environmental review.
(b) Review with the ESW is not required for proposed actions that are categorically excluded as specified in § 799.31(b) or § 1b.3 of this title, or for proposed actions where FSA determines at an early stage that there is a need to prepare an EA or EIS.
(a) FSA has determined that the categories of proposed actions listed in §§ 799.31 and 799.32 do not normally individually or cumulatively have a significant effect on the human environment and do not threaten a violation of applicable statutory, regulatory, or permit requirements for environment, safety, and health, including requirements of Executive Orders and other USDA regulations in this chapter. Based on FSA's previous experience implementing these actions and similar actions through the completion of EAs, these proposed actions are categorically excluded.
(b) If a proposed action falls within one of the categories of proposed actions listed in § 1b.3 of this title, § 799.31, or § 799.32, and there are no extraordinary circumstances present as specified in § 799.33, then the proposed action is categorically excluded from the requirements to prepare an EA or an EIS.
(c) Those proposed actions in categories in § 799.31 or § 799.32 will be considered categorical exclusions unless it is determined there are extraordinary circumstances, as specified in § 799.33.
(a) Proposed actions listed in this section involve no new ground disturbance below the existing plow zone (does not exceed the depth of previous tillage or disturbance) and therefore only need to be recorded on the ESW; no further review will be required. Unless otherwise noted, the proposed actions in this section also do not have the potential to cause effects to historic properties, and will therefore not be reviewed for compliance with section 106 of NHPA (54 U.S.C. 306108) or its implementing regulations, 36 CFR part 800. However, some proposed actions may require other Federal consultation to determine if there are extraordinary circumstances as specified in § 799.33.
(b) The following proposed actions are categorically excluded. These proposed actions are grouped into broader categories of similar types of proposed actions. Those proposed actions that are similar in scope (purpose, intent, and breadth) and the potential significance of impacts to those listed in this section, but not specifically listed in § 799.31 or § 799.32, will be considered categorical exclusions in this category, unless it is determined that extraordinary circumstances exist, as specified in § 799.33:
(1)
(i) Closing cost payments;
(ii) Commodity loans;
(iii) Debt set asides;
(iv) Deferral of loan payments;
(v) Youth loans;
(vi) Loan consolidation;
(vii) Loans for annual operating expenses, except livestock;
(viii) Loans for equipment;
(ix) Loans for family living expenses;
(x) Loan subordination, with no or minimal construction below the depth of previous tillage or ground disturbance, and no change in operations, including, but not limited to, an increase in animal numbers to exceed the current CAFO designation (as defined by the U.S. Environmental Protection Agency in 40 CFR 122.23);
(xi) Loans to pay for labor costs;
(xii) Loan (debt) transfers and assumptions with no new ground disturbance;
(xiii) Partial or complete release of loan collateral;
(xiv) Re-amortization of loans;
(xv) Refinancing of debt;
(xvi) Rescheduling loans;
(xvii) Restructuring of loans; and
(xvii) Writing down of debt;
(2)
(i) Existing fence repair;
(ii) Improvement or repair of farm-related structures under 50 years of age; and
(iii) Minor amendments or revisions to previously approved projects, provided such proposed actions do not substantively alter the purpose, operation, location, impacts, or design of the project as originally approved;
(3)
(i) Issuing minor technical corrections to regulations, handbooks, and internal guidance, as well as amendments to them;
(ii) Personnel actions, reduction-in-force, or employee transfers; and
(iii) Procurement actions for goods and services conducted in accordance with Executive Orders;
(4)
(i) Bareland planting or planting without site preparation;
(ii) Bedding site establishment for wildlife;
(iii) Chiseling and subsoiling;
(iv) Clean tilling firebreaks;
(v) Conservation crop rotation;
(vi) Contour farming;
(vii) Contour grass strip establishment;
(viii) Cover crop and green manure crop planting;
(ix) Critical area planting;
(x) Firebreak installation;
(xi) Grass, forbs, or legume planting;
(xii) Heavy use area protection;
(xiii) Installation and maintenance of field borders or field strips;
(xiv) Pasture, range, and hayland planting;
(xv) Seeding of shrubs;
(xvi) Seedling shrub planting;
(xvii) Site preparation;
(xviii) Strip cropping;
(xix) Wildlife food plot planting; and
(xx) Windbreak and shelterbelt establishment;
(5)
(i) Forage harvest management;
(ii) Integrated crop management;
(iii) Mulching, including plastic mulch;
(iv) Netting for hard woods;
(v) Obstruction removal;
(vi) Pest management (consistent with all labelling and use requirements);
(vii) Plant grafting;
(viii) Plugging artesian wells;
(ix) Residue management including seasonal management;
(x) Roof runoff management;
(xi) Thinning and pruning of plants;
(xii) Toxic salt reduction; and
(xiii) Water spreading; and
(6)
(i) Conservation easement purchases with no construction planned;
(ii) Emergency program proposed actions (including Emergency Conservation Program and Emergency Forest Restoration Program) that have a total cost share of less than $5,000;
(iii) Financial assistance to supplement income, manage the supply of agricultural commodities, or influence the cost and supply of such commodities or programs of a similar nature or intent (that is, price support programs);
(iv) Individual farm participation in FSA programs where no ground disturbance or change in land use occurs as a result of the proposed action or participation;
(v) Inventory property disposal or lease with protective easements or covenants;
(vi) Safety net programs administered by FSA;
(vii) Site characterization, environmental testing, and monitoring where no significant alteration of existing ambient conditions would occur, including air, surface water, groundwater, wind, soil, or rock core sampling; installation of monitoring wells; installation of small scale air, water, or weather monitoring equipment;
(viii) Stand analysis for forest management planning;
(ix) Tree protection including plastic tubes; and
(x) Proposed actions involving another agency that are fully covered by one or more of that agency's categorical exclusions (on the ESW, to record the categorical exclusion, FSA will name the other agency and list the specific categorical exclusion(s) that applies).
(a) Proposed actions listed in this section may be categorically excluded after completion of a review with an ESW to document that a proposed action does not involve extraordinary circumstances as specified in § 799.33.
(b) This section has two types of categorical exclusions, one without construction and ground disturbance and one with construction and ground disturbance that will require additional environmental review and consultation in most cases.
(c) Consultations under NHPA, ESA, and other relevant environmental mandates, may be required to document that no extraordinary circumstances exist.
(d) The following proposed actions are grouped into broader categories of similar types of proposed actions without ground disturbance. Those proposed actions that are similar in scope (purpose, intent, and breadth) and the potential significance of impacts to those listed in this section, but not specifically listed in this section, will be considered categorical exclusions in this category, unless it is determined that extraordinary circumstances exist, as specified in § 799.33:
(1)
(i) Farm storage and drying facility loans for added capacity;
(ii) Loans for livestock purchases;
(iii) Release of loan security for forestry purposes;
(iv) Reorganizing farm operations; and
(v) Replacement building loans;
(2)
(i) Minor construction, such as a small addition;
(ii) Drain tile replacement;
(iii) Erosion control measures;
(iv) Grading, leveling, shaping, and filling;
(v) Grassed waterway establishment;
(vi) Hillside ditches;
(vii) Land-clearing operations of no more than 15 acres, provided any amount of land involved in tree harvesting (without stump removal) is to be conducted on a sustainable basis and according to a Federal, State, Tribal, or other governmental unit approved forestry management plan;
(viii) Nutrient management;
(ix) Permanent establishment of a water source for wildlife (not livestock);
(x) Restoring and replacing property;
(xi) Soil and water development;
(xii) Spring development;
(xiii) Trough or tank installation; and
(xiv) Water harvesting catchment; and
(3)
(i) Fence installation and replacement;
(ii) Fish stream improvement;
(iii) Grazing land mechanical treatment; and
(iv) Inventory property disposal or lease without protective easements or covenants (this proposed action, in particular, has the potential to cause effects to historic properties and therefore requires analysis under section 106 of NHPA (54 U.S.C. 306108), as well as under the ESA and wetland protection requirements).
(e) The following proposed actions are grouped into broader categories of similar types of proposed actions with ground disturbance, each of the listed proposed actions has the potential for extraordinary circumstances because they include construction or ground disturbance. Therefore, additional environmental review and consultation will be necessary in most cases. Those proposed actions that are similar in scope (purpose, intent, and breadth) and the potential significance of impacts to those listed in this section, but not specifically listed in this section, will be considered categorical exclusions in this category, unless it is determined that extraordinary circumstances exist, as specified in § 799.33:
(1)
(i) Loans and loan subordination with construction, demolition, or ground disturbance planned;
(ii) Real estate purchase loans with new ground disturbance planned; and
(iii) Term operating loans with construction or demolition planned;
(2)
(i) Bridges;
(ii) Chiseling and subsoiling in areas not previously tilled;
(iii) Construction of a new farm storage facility;
(iv) Dams;
(v) Dikes and levees;
(vi) Diversions;
(vii) Drop spillways;
(viii) Dugouts;
(ix) Excavation;
(x) Grade stabilization structures;
(xi) Grading, leveling, shaping and filling in areas or to depths not previously disturbed;
(xii) Installation of structures designed to regulate water flow such as pipes, flashboard risers, gates, chutes, and outlets;
(xiii) Irrigation systems;
(xiv) Land smoothing;
(xv) Line waterways or outlets;
(xvi) Lining;
(xvii) Livestock crossing facilities;
(xviii) Pesticide containment facility;
(xix) Pipe drop;
(xx) Pipeline for watering facility;
(xxi) Ponds, including sealing and lining;
(xxii) Precision land farming with ground disturbance;
(xxiii) Riparian buffer establishment;
(xxiv) Roads, including access roads;
(xxv) Rock barriers;
(xxvi) Rock filled infiltration trenches;
(xxvii) Sediment basin;
(xxviii) Sediment structures;
(xxix) Site preparation for planting or seeding in areas not previously tilled;
(xxx) Soil and water conservation structures;
(xxxi) Stream bank and shoreline protection;
(xxxii) Structures for water control;
(xxxiii) Subsurface drains;
(xxxiv) Surface roughening;
(xxxv) Terracing;
(xxxvi) Underground outlets;
(xxxvii) Watering tank or trough installation, if in areas not previously disturbed;
(xxxviii) Wells; and
(xxxix) Wetland restoration.
(3)
(i) Establishing or maintaining wildlife plots in areas not previously tilled or disturbed;
(ii) Prescribed burning;
(iii) Tree planting when trees have root balls of one gallon container size or larger; and
(iv) Wildlife upland habitat management.
(a) As specified in 40 CFR 1508.4, in the definition of categorical exclusion, procedures are required to provide for extraordinary circumstances in which a normally categorically excluded action may have a significant environmental effect. The presence and impacts of extraordinary circumstances require heightened review of proposed actions that would otherwise be categorically excluded. Extraordinary circumstances include, but are not limited to:
(1) Scientific controversy about environmental effects of the proposed action;
(2) Impacts that are potentially adverse, significant, uncertain, or involve unique or unknown risks, including, but not limited to, impacts to protected resources. Protected resources include, but are not limited to:
(i) Property (for example, sites, buildings, structures, and objects) of historic, archeological, or architectural significance, as designated by Federal, Tribal, State, or local governments, or property eligible for listing on the National Register of Historic Places;
(ii) Federally-listed threatened or endangered species or their habitat (including critical habitat), or Federally-proposed or candidate species or their habitat;
(iii) Important or prime agricultural, forest, or range lands, as specified in part 657 of this chapter and in USDA Departmental Regulation 9500-3;
(iv) Wetlands, waters of the United States, as regulated under the Clean Water Act (33 U.S.C. 1344), highly erodible land, or floodplains;
(v) Areas having a special designation, such as Federally- and State-designated wilderness areas, national parks, national natural landmarks, wild and scenic rivers, State and Federal wildlife refuges, and marine sanctuaries; and
(vi) Special sources of water, such as sole-source aquifers, wellhead protection areas, or other water sources that are vital in a region;
(3) A proposed action that is also “connected” (as specified in 40 CFR 1508.25(a)(1)) to other actions with potential impacts;
(4) A proposed action that is related to other proposed actions with cumulative impacts (40 CFR 1508.25(a)(2));
(5) A proposed action that does not comply with 40 CFR 1506.1, “Limitations on actions during NEPA process;” and
(6) A proposed action that violates any existing Federal, State, or local government law, policy, or requirements (for example, wetland laws, Clean Water Act-related requirements, water rights).
(b) FSA will use the ESW to review proposed actions that are eligible for categorical exclusion to determine if extraordinary circumstances exist that could impact protected resources. If an extraordinary circumstance exists, and cannot be avoided or appropriately mitigated, an EA or EIS will be prepared, as specified in this part. Specifically, FSA will complete a review with the ESW for proposed actions that fall within the list of categorical exclusions specified in § 799.32 to determine whether extraordinary circumstances are present.
(c) For any proposed actions that have the potential to cause effects to historic properties, endangered species, waters of the United States, wetlands, and other protected resources, FSA will ensure appropriate analyses is completed to comply with the following mandates:
(1) For section 106 of the NHPA (54 U.S.C. 306108), the regulations in 36 CFR part 800, “Protection of Historic Properties;” if an authorized technical representative from another Federal agency assists with compliance with 36 CFR part 800, FSA will remain responsible for any consultation with SHPO, THPO, or Tribal governments;
(2) For section 7 of the ESA that governs the protection of Federally proposed, threatened and endangered species and their designated and proposed critical habitats; and
(3) For the Clean Water Act and related Executive Order provisions for avoiding impacts to wetlands and waters of the United States, including impaired waters listed under Section 303(d) of the Clean Water Act.
(d) If technical assistance is provided by another Federal agency, FSA will ensure that the environmental documentation provided is commensurate to or exceeds the requirements of the FSA ESW. If it is not, a review with an ESW is needed to determine if an EA or EIS is warranted.
(a) As part of the process to establish a new categorical exclusion, FSA will consider all relevant information, including the following:
(1) Completed FSA NEPA documents;
(2) Other Federal agency NEPA documents on proposed actions that could be considered similar to the categorical exclusion being considered;
(3) Results of impact demonstration or pilot projects;
(4) Information from professional staff, expert opinions, and scientific analyses; and
(5) The experiences of FSA, private, and public parties that have taken similar actions.
(b) FSA will consult with CEQ and appropriate Federal agencies while developing or modifying a categorical exclusion.
(c) Before establishing a new final categorical exclusion, FSA will follow the CEQ specified process for establishing Categorical Exclusions, including consultation with CEQ and an opportunity for public review and comment as required by 40 CFR 1507.3.
(d) FSA will maintain an administrative record that includes the supporting information and findings used in establishing a categorical exclusion.
(e) FSA will periodically review its categorical exclusions to identify and revise exclusions that no longer effectively reflect environmental circumstances or current FSA program scope.
(f) FSA will use the same process specified in this section and the results of its periodic reviews to revise a
(a) FSA prepares an EA to determine whether a proposed action would significantly affect the environment, and to consider the potential impacts of reasonable alternatives and the potential mitigation measures to the alternatives and proposed action.
(b) FSA will prepare a PEA to determine if proposed actions that are broad in scope or similar in nature have cumulative significant environmental impacts, although the impacts of the proposed actions may be individually insignificant.
(c) The result of the EA process will be either a FONSI or a determination that an EIS is required. FSA may also determine that a proposed action will significantly affect the environment without first preparing an EA; in that case, an EIS is required.
(a) Proposed actions that require the preparation of an EA include the following:
(1) New Conservation Reserve Enhancement Program (CREP) agreements;
(2) Development of farm ponds or lakes greater than or equal to 20 acres;
(3) Restoration of wetlands greater than or equal to 100 acres aggregate;
(4) Installation or enlargement of irrigation facilities, including storage reservoirs, diversions, dams, wells, pumping plants, canals, pipelines, and sprinklers designed to irrigate greater than 320 acres aggregate;
(5) Land clearing operations (for example, vegetation removal, including tree stumps; grading) involving greater than or equal to 40 acres aggregate;
(6) Clear cutting operations for timber involving greater than or equal to 100 acres aggregate;
(7) Construction or major enlargement of a Concentrated Aquatic Animal Production Facility (CAAP), as defined by the U.S. Environmental Protection Agency in 40 CFR 122.24;
(8) Construction of commercial facilities or structures for processing or handling of farm production or for public sales;
(9) Construction or major expansion of a large CAFO, as defined by the U.S. Environmental Protection Agency in 40 CFR 122.23, regardless of the type of manure handling system or water system;
(10) Refinancing of a newly constructed large CAFO, as defined by the U.S. Environmental Protection Agency in 40 CFR 122.23, or CAAPs as defined by the U.S. Environmental Protection Agency in 40 CFR 122.24 through 122.25, that has been in operation for 24 months or less;
(11) Issuance of substantively discretionary FSA regulations,
(12) Newly authorized programs that involve substantively discretionary proposed actions and are specified in § 799.32(d);
(13) Any FSA proposed action that has been determined to trigger extraordinary circumstances specified in § 799.33(c); and
(14) Any proposed action that will involve the planting of a potentially invasive species, unless exempted by Federal law.
(b) Proposed actions that do not reach the thresholds defined in paragraph (a) of this section, unless otherwise identified under § 799.31(b) or § 799.32(c), require a review using the ESW to determine if an EA is warranted.
(a) The EA should include at least the following:
(1) FSA cover sheet;
(2) Executive summary;
(3) Table of contents;
(4) List of acronyms;
(5) A discussion of the purpose of and need for the proposed action;
(6) A discussion of alternatives, if the proposed action involves unresolved conflicts concerning the uses of available resources;
(7) A discussion of the existing pre-project environment and the potential environmental impacts of the proposed action, with reference to the significance of the impact as specified in § 799.8 and 40 CFR 1508.27;
(8) Likelihood of any significant impact and potential mitigation measures that FSA will require, if needed, to support a FONSI;
(9) A list of preparers and contributors;
(10) A list of agencies, tribes, groups, and persons solicited for feedback and the process used to solicit that feedback;
(11) References; and
(12) Appendixes, if appropriate.
(b) FSA will prepare a Supplemental EA, and place the supplements in the administrative record of the original EA, if:
(1) Substantial changes occur in the proposed action that are relevant to environmental concerns previously presented, or
(2) Significant new circumstances or information arise that are relevant to environmental concerns and to the proposed action or its impacts.
(c) FSA may request that a program participant prepare or provide information for FSA to use in the EA and may use the program participant's information in the EA or Supplemental EA, provided that FSA also:
(1) Independently evaluates the environmental issues;
(2) Takes responsibility for the scope and content of the EA and the process utilized, including any required public involvement; and
(3) Prepares the FONSI or NOI to prepare an EIS.
(a) As specified in 40 CFR 1508.28, tiering is a process of covering general environmental review in a broad PEA, followed by subsequent narrower scope analysis to address specific proposed actions, action stages, or sites. FSA will use tiering when FSA prepares a broad PEA and subsequently prepares a site-specific ESW, EA, or PEA for a proposed action included within the program addressed in the original, broad PEA.
(b) When FSA uses tiering in a broad PEA, the subsequent ESW, EA, or PEA will:
(1) Summarize the issues discussed in the broader statement;
(2) Incorporate by reference the discussions from the broader statement and the conclusions carried forward into the subsequent tiered analysis and documentation; and
(3) State where the PEA document is available.
(a) FSA may adopt an EA prepared by another Federal agency, State, or Tribal government if the EA meets the requirements of this subpart.
(b) If FSA adopts another agency's EA and issues a FONSI, FSA will follow the procedures specified in § 799.44.
(a) If after completing the EA, FSA determines that the proposed action will not have a significant effect on the quality of the human environment, FSA will issue a FONSI.
(b) The FONSI will include the reasons FSA determined that the proposed action will have no significant environmental impacts.
(c) If the decision to issue the FONSI is conditioned upon the implementation of measures (mitigation actions) to ensure that impacts will be held to a
(a) FSA will prepare an EIS for proposed actions that are expected to have a significant effect on the human environment. The purpose of the EIS is to ensure that all significant environmental impacts and reasonable alternatives are fully considered in connection with the proposed action.
(b) FSA will prepare a PEIS for proposed actions that are broad in scope or similar in nature and may cumulatively have significant environmental impacts, although the impact of the individual proposed actions may be insignificant.
(a) The following FSA proposed actions normally require preparation of an EIS:
(1) Legislative proposals, not including appropriations requests, with the potential for significant environmental impact that are drafted and submitted to Congress by FSA;
(2) Broad Federal assistance programs administered by FSA, involving significant financial assistance or payments to program participants, that may have significant cumulative impacts on the human environment; and
(3) Ongoing programs that have been found through previous environmental analyses to have major environmental concerns.
(b) [Reserved]
(a) FSA will publish a Notice of Intent to prepare an EIS in the
(b) The notice will include the following:
(1) A description of the proposed action and possible alternatives;
(2) A description of FSA's proposed scoping process, including information about any public meetings; and
(3) The name of an FSA point of contact who can receive input and answer questions about the proposed action and the preparation of the EIS.
(a) FSA will prepare the EIS as specified in 40 CFR part 1502 and in section 102 of NEPA (42 U.S.C. 4332).
(b) The EIS should include at least the following:
(1) An FSA cover sheet;
(2) An executive summary explaining the major conclusions, areas of controversy, and the issues to be resolved;
(3) A table of contents;
(4) List of acronyms and abbreviations;
(5) A brief statement explaining the purpose and need of the proposed action;
(6) A detailed discussion of the environmental impacts of the proposed action and reasonable alternatives to the proposed action, a description and brief analysis of the alternatives considered but eliminated from further consideration, the no-action alternative, FSA's preferred alternative(s), and discussion of appropriate mitigation measures;
(7) A discussion of the affected environment;
(8) A detailed discussion of:
(i) The direct and indirect environmental consequences, including any cumulative impacts, of the proposed action and of the alternatives;
(ii) Unavoidable adverse environmental effects;
(iii) The relationship between local short-term uses of the environment and long-term ecosystem productivity;
(iv) Any irreversible and irretrievable commitments of resources;
(vi) Possible conflicts with the objectives of Federal, regional, State, local, regional, and Tribal land use plans, policies, and controls for the area concerned;
(vii) Energy and natural depletable resource requirements, including, but not limited to natural gas and oil, and conservation potential of the alternatives and mitigation measures; and
(viii) Urban quality, historic, and cultural resources and the design of the built environment, including the reuse and conservation potential of the alternatives and mitigation measures;
(9) In the draft EIS, a list of all Federal permits, licenses, and other entitlements that must be obtained for implementation of the proposed action;
(10) A list of preparers;
(11) Persons and agencies contacted;
(12) References, if appropriate;
(13) Glossary, if appropriate;
(14) Index;
(15) Appendixes, if any;
(16) A list of agencies, organizations, and persons to whom copies of the EIS are sent; and
(17) In the final EIS, a response to substantive comments on environmental issues.
(c) FSA may have a contractor prepare an EIS as specified in 40 CFR 1506.5(c). If FSA has a contractor prepare an EIS, FSA will:
(1) Require the contractor to sign a disclosure statement specifying it has no financial or other interest in the outcome of the proposed action, which will be included in the administrative record; and
(2) Furnish guidance and participate in the preparation of the EIS, and independently evaluate the EIS before its approval.
(a) FSA will prepare the draft EIS addressing the information specified in § 799.53.
(b) FSA will circulate the draft EIS as specified in 40 CFR 1502.19.
(c) In addition to the requirements of 40 CFR 1502.19, FSA will request comments on the draft EIS from:
(1) Appropriate State and local agencies authorized to develop and enforce environmental standards relevant to the scope of the EIS;
(2) Tribal governments that have interests that could be impacted; and
(3) If the proposed action affects historic properties, the appropriate SHPO, THPO, and the Advisory Council on Historic Preservation.
(d) FSA will file the draft EIS with the U.S. Environmental Protection Agency as specified in 40 CFR 1506.9 and in accordance with U.S. Environmental Protection Agency filing requirements (available at
(e) The draft EIS will include a cover sheet with the information specified in 40 CFR 1502.11.
(f) FSA will provide for a minimum 45-day comment period calculated from the date the U.S. Environmental Protection Agency publishes the NOA of the draft EIS.
(a) FSA will prepare the final EIS addressing the information specified in § 799.53.
(b) FSA will evaluate the comments received on the draft EIS and respond in the final EIS as specified in 40 CFR 1503.4. FSA will discuss in the final EIS any issues raised by commenters that were not discussed in the draft EIS and provide a response to those comments.
(c) FSA will attach substantive comments, or summaries of lengthy comments, to the final EIS and will include all comments in the administrative record.
(d) FSA will circulate the final EIS as specified in 40 CFR 1502.19.
(e) FSA will file the final EIS with the U.S. Environmental Protection Agency as specified in 40 CFR 1506.9.
(f) The final EIS will include a cover sheet with the information specified in 40 CFR 1502.11.
(a) FSA will prepare supplements to a draft or final EIS if:
(1) Substantial changes occur in the proposed action that are relevant to environmental concerns; or
(2) Significant new circumstances or information arise that are relevant to environmental concerns and bearing on the proposed action or its impacts.
(b) The requirements of this subpart for completing the original EIS apply to the supplemental EIS, with the exception of the scoping process, which is optional.
(a) As specified in 40 CFR 1508.28, tiering is a process of covering general environmental review in a broad PEIS, followed by subsequent narrower scope analysis to address specific proposed actions, action stages, or sites. FSA will use tiering when FSA prepares a broad PEIS and subsequently prepares a site-specific ESW, EA, or PEA for a proposed action included within the program addressed in the original, broad PEIS.
(b) When FSA uses tiering in a broad PEIS, the subsequent ESW, EA, or PEA will:
(1) Summarize the issues discussed in the broader statement;
(2) Incorporate by reference the discussions from the broader statement and the conclusions carried forward into the subsequent tiered analysis and documentation; and
(3) State where the PEIS document is available.
(a) FSA may elect to adopt an EIS prepared by another Federal agency, State, or Tribal government if:
(1) The NECM determines that the EIS and the analyses and procedures by which they were developed meet the requirements of this part; and
(2) The agency responsible for preparing the EIS concurs.
(b) For the adoption of another Federal agency EIS, FSA will follow the procedures specified in the CEQ regulations in 40 CFR 1506.3.
(c) For the adoption of an EIS from a state or tribe that has an established state or tribal procedural equivalent to the NEPA process (generally referred to as “mini-NEPA”), FSA will follow the procedures specified in the CEQ regulations in 40 CFR 1506.3.
(a) FSA will issue a Record of Decision (ROD) within the time periods specified in 40 CFR 1506.10(b) but no sooner than 30 days after the U.S. Environmental Protection Agency's publication of the NOA of the final EIS. The ROD will:
(1) State the decision reached;
(2) Identify all alternatives considered by FSA in reaching its decision, specifying the alternative or alternatives considered to be environmentally preferable;
(3) Identify and discuss all factors, including any essential considerations of national policy, which were considered by FSA in making its decision, and state how those considerations entered into its decision; and
(4) State whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted and, if not, explain why these mitigation measures were not adopted. A monitoring and enforcement program will be adopted and summarized where applicable for any mitigation.
(b) FSA will distribute the ROD to all parties who request it.
(c) FSA will publish the ROD or a notice of availability of the ROD in the
7 U.S.C. 7971 and 8789; and 15 U.S.C. 714 through 714p.
5 U.S.C. 301; 7 U.S.C. 1989; and 42 U.S.C. 1480.
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 |