Page Range | 52969-53243 | |
FR Document |
Page and Subject | |
---|---|
81 FR 53095 - Federal Housing Administration (FHA): Strengthening the Home Equity Conversion Mortgage Program | |
81 FR 53146 - Sunshine Act Meeting | |
81 FR 53174 - In the Matter of Chang-On International, Inc., Computer Graphics International Inc., Guanwei Recycling Corp., John D. Oil and Gas Company, Legal Life Plans, Inc., Powder River Coal Corp., Reunion Industries, Inc., ThermoEnergy Corporation; Order of Suspension of Trading | |
81 FR 53130 - Agency Information Collection Activities; Comment Request; Federal Perkins Loan Program Regulations and General Provisions Regulations | |
81 FR 53148 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Manufactured Food Regulatory Program Standards | |
81 FR 53196 - Fund Availability under the Grants for Transportation of Veterans in Highly Rural Areas | |
81 FR 53119 - Granular Polytetrafluorethylene Resin From Italy: Final Results of Sunset Review and Revocation of Antidumping Duty Order | |
81 FR 53121 - Initiation of Antidumping and Countervailing Duty Administrative Reviews | |
81 FR 53120 - Porcelain-on-Steel Cooking Ware From the People's Republic of China: Continuation of Antidumping Duty Order | |
81 FR 53152 - The Privacy Act Of 1974, As Amended; Notice of New HUD Certified Housing Counselor and Client Certificate of Housing Counseling Database, System of Records | |
81 FR 53120 - Multilayered Wood Flooring From the People's Republic of China: Correction to the Final Results of Antidumping Duty Administrative Review | |
81 FR 52998 - Disposition of HUD-Acquired Single Family Properties; Updating HUD's Single Family Property Disposition Regulations | |
81 FR 53004 - Safety Zone; Pittsburgh Steelers Fireworks; Allegheny River Mile 0.0-0.25, Ohio River Mile 0.0-0.1, Monongahela River Mile 0.0-0.1, Pittsburgh, PA | |
81 FR 53125 - Agency Information Collection Activities Under OMB Review | |
81 FR 53144 - Access to Confidential Business Information by Battelle Memorial Institute | |
81 FR 53143 - Access to Confidential Business Information by the U.S. Consumer Product Safety Commission | |
81 FR 53142 - Access to Confidential Business Information by the National Institute for Occupational Safety and Health | |
81 FR 53167 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Coal Mine Dust Sampling Devices | |
81 FR 53166 - Agency Information Collection Activities; Proposed eCollection eComments Requested; United States Victims of State Sponsored Terrorism Fund Application Form | |
81 FR 53019 - Halauxifen-methyl; Pesticide Tolerances | |
81 FR 53012 - Aminocyclopyrachlor; Pesticide Tolerances | |
81 FR 53167 - Workforce Innovation and Opportunity Act; Native American Employment and Training Council | |
81 FR 53155 - Agency Information Collection Activities: Request for Comments | |
81 FR 53149 - Infectious Disease Next Generation Sequencing Based Diagnostic Devices: Microbial Identification and Detection of Antimicrobial Resistance and Virulence Markers; Draft Guidance for Industry and Food and Drug Administration Staff; Extension of Comment Period | |
81 FR 53031 - Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2017; Corrections | |
81 FR 53169 - Confirmatory Order; In the Matter of AREVA, Inc. | |
81 FR 53159 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Identification of Explosive Materials | |
81 FR 53161 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Certification on Agency Letterhead Authorizing Purchase of Firearm for Official Duties of Law Enforcement Officer | |
81 FR 53160 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Interstate Firearms Shipment Report of Theft/Loss (ATF F 3310.6) | |
81 FR 53165 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Approval of an Existing Collection in Use Without an OMB Control Number Credit Card Payment Form (1-786) | |
81 FR 53164 - Agency Information Collection Activities; Proposed eCollection, eComments Requested; Extension Without Change of a Previously Approved Collection Import/Export Declaration for List I and List II Chemicals-DEA Forms 486, 486A | |
81 FR 53165 - Agency Information Collection Activities; Proposed eCollection, eComments Requested; Extension Without Change of a Previously Approved Collection Controlled Substances Import/Export Declaration-DEA Form 236 | |
81 FR 53163 - Agency Information Collection Activities; Proposed eCollection, eComments Requested; Extension Without Change of a Previously Approved Collection Application for Permit To Export Controlled Substances, Application for Permit To Export Controlled Substances for Subsequent Reexport-DEA Forms 161, 161R | |
81 FR 53155 - Endangered Species; Recovery Permit Applications | |
81 FR 53118 - Submission for OMB Review; Comment Request | |
81 FR 53145 - Information Collection Being Submitted for Review and Approval to the Office of Management and Budget | |
81 FR 53144 - Information Collection Being Reviewed by the Federal Communications Commission | |
81 FR 53158 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
81 FR 53124 - Submission for OMB Review; Comment Request | |
81 FR 53134 - Eastern Shore Natural Gas Company; Notice of Intent To Prepare an Environmental Assessment for the Planned 2017 Expansion Project and Request for Comments on Environmental Issues | |
81 FR 53137 - Alcoa Power Generating Inc., Cube Yadkin Generation LLC; Notice of Application for Transfer of License and Soliciting Comments, Motions To Intervene, and Protests | |
81 FR 53139 - Cushnie, Colin E.; Notice of Filing | |
81 FR 53132 - HORUS Central Valley Solar 1, LLC, HORUS Central Valley Solar 2, LLC v. California Independent System Operator Corporation; Notice of Complaint | |
81 FR 53130 - West Deptford Energy, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective Date | |
81 FR 53137 - El Paso Natural Gas Company, L.L.C.; Notice of Request Under Blanket Authorization | |
81 FR 53139 - ANR Pipeline Company; Notice of Request Under Blanket Authorization | |
81 FR 53136 - Notice of Commission Staff Attendance | |
81 FR 53141 - NextEra Energy Transmission West, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective Date | |
81 FR 53140 - Texas Eastern Transmission, LP; Notice of Intent To Prepare an Environmental Assessment for the Proposed Bayway Lateral Project, and Request for Comments on Environmental Issues | |
81 FR 53133 - PennEast Pipeline Company, LLC; Notice of Public Comment Meeting Location Change for the Proposed Penneast Pipeline Project | |
81 FR 53142 - Combined Notice of Filings #1 | |
81 FR 53131 - Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications; Shell Energy North America (US), L.P. | |
81 FR 53138 - Notice of Application for Temporary Variance and Soliciting Comments, Motions To Intervene, and Protests: Domtar Paper Company, LLC | |
81 FR 53130 - Notice of Commission Staff Attendance | |
81 FR 53131 - Notice of Request Under Blanket Authorization: Natural Gas Pipeline Company of America, LLC | |
81 FR 53132 - Combined Notice of Filings #1 | |
81 FR 53156 - Certain Overflow and Drain Assemblies for Bathtubs and Components Thereof; Notice of the Commission's Determination Not To Review an Initial Determination Terminating Better Enterprise Co. Ltd. From the Investigation; Issuance of Consent Order; Termination of the Investigation | |
81 FR 53157 - Hydrofluorocarbon Blends and Components From China; Determination | |
81 FR 53128 - Submission for OMB Review; Comment Request | |
81 FR 53127 - Submission for OMB Review; Comment Request | |
81 FR 53129 - Charter Renewal of Department of Defense Federal Advisory Committees | |
81 FR 53147 - Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies | |
81 FR 53146 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
81 FR 53146 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
81 FR 53118 - Notice of Public Meetings of the Virginia Advisory Committee to Plan Civil Rights Project | |
81 FR 53184 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the NYSE Arca Options Fee Schedule | |
81 FR 53180 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1, Amending NYSE Rule 49 Regarding: (1) The Exchange's Emergency Powers; (2) the Exchange's Disaster Recovery Plans; and (3) Exchange Backup Systems and Mandatory Testing | |
81 FR 53176 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change, Rule Change, as Modified by Amendment No. 1, Amending NYSE Rule 49-Equities Regarding: (1) The Exchange's Emergency Powers; (2) the Exchange's Disaster Recovery Plans; and (3) Exchange Backup Systems and Mandatory Testing | |
81 FR 53174 - Self-Regulatory Organizations; Investors Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 11.270(c) Concerning Clearly Erroneous Executions | |
81 FR 53147 - National Institute for Occupational Safety and Health Draft Immediately Dangerous to Life or Health (IDLH) Value Profile for Peracetic Acid (CAS #79-21-0) | |
81 FR 53168 - Proposal Review; Notice of Meetings | |
81 FR 53125 - Fostering the Advancement of the Internet of Things Workshop | |
81 FR 53152 - Office of the Director; Notice of Meeting | |
81 FR 53151 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
81 FR 53151 - National Institute of Dental & Craniofacial Research; Notice of Closed Meeting | |
81 FR 53162 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-R Consortium, Inc. | |
81 FR 53162 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Heterogeneous System Architecture Foundation | |
81 FR 52969 - Livestock Mandatory Reporting: Reauthorization of Livestock Mandatory Reporting and Revision of Swine and Lamb Reporting Requirements | |
81 FR 53163 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Open Platform for NFV Project, Inc. | |
81 FR 53161 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Node.Js Foundation | |
81 FR 53157 - Certain Document Cameras and Software for Use Therewith; Issuance of a Limited Exclusion Order and Cease and Desist Order Against the Respondent Found in Default; Termination of the Investigation | |
81 FR 53163 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-ODPI, Inc. | |
81 FR 53162 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Medical CBRN Defense Consortium (Formerly National Chemical Biological Defense Consortium) | |
81 FR 53006 - Technical Correction to the National Ambient Air Quality Standards for Particulate Matter | |
81 FR 53097 - Technical Correction to the National Ambient Air Quality Standards for Particulate Matter | |
81 FR 53109 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery Off the Southern Atlantic States; Regulatory Amendment 16 | |
81 FR 53128 - Army Education Advisory Committee Meeting Notice | |
81 FR 53039 - Amendment of the Emergency Alert System | |
81 FR 53046 - Public Transportation Safety Program | |
81 FR 53098 - Approval and Promulgation of Implementation Plans; Oklahoma; Disapproval of Prevention of Significant Deterioration for Particulate Matter Less Than 2.5 Micrometers-Significant Impact Levels and Significant Monitoring Concentration | |
81 FR 52995 - New Animal Drug Applications; Contents of Notice of Opportunity for a Hearing; Correction | |
81 FR 52994 - Regulatory Hearing Before the Food and Drug Administration; General Provisions; Technical Amendment | |
81 FR 52992 - Amendment of Class E Airspace for the Following Michigan Towns; Alma, MI; Bellaire, MI; Cadillac, MI; Drummond Island, MI; Gladwin, MI; Holland, MI; and Three Rivers, MI | |
81 FR 53093 - Proposed Amendment of Class E Airspace for the Following Wisconsin Towns; Antigo, WI; Ashland, WI; Black River Falls, WI; Cable Union, WI; Cumberland, WI; Eagle River, WI; Hayward, WI; and Wausau, WI, and Proposed Revocation of Class E Airspace; Wausau, WI | |
81 FR 52991 - Establishment of Class E Airspace; Park River, ND | |
81 FR 53091 - Proposed Amendment of Class D and E Airspace for the Following Texas Towns; Houston Sugar Land, TX; Alice, TX; Bay City, TX; Brenham, TX; Burnet, TX; Falfurrias, TX; Graford, TX; and Hamilton, TX, and Proposed Revocation of Class E Airspace; Austin Horseshoe Bay Resort Airport, TX | |
81 FR 52974 - Operating Philosophy for Maintaining Occupational and Public Radiation Exposures as Low as Is Reasonably Achievable | |
81 FR 53061 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Northeast Fisheries Science Center Fisheries Research | |
81 FR 52975 - Airworthiness Directives; Continental Motors, Inc. Reciprocating Engines | |
81 FR 53045 - Defense Federal Acquisition Regulation Supplement; Technical Amendment | |
81 FR 53101 - Defense Federal Acquisition Regulation Supplement: Procurement of Commercial Items (DFARS Case 2016-D006) | |
81 FR 53150 - Medicare Program; Administrative Law Judge Hearing Program for Medicare Claim and Entitlement Appeals; Quarterly Listing of Program Issuances-March Through June 2016 | |
81 FR 53008 - Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Prevention of Significant Deterioration and Approval of Infrastructure State Implementation Plans for Specific National Ambient Air Quality Standards | |
81 FR 53025 - Arkansas: Final Authorization of State Hazardous Waste Management Program Revision | |
81 FR 53100 - Arkansas: Final Authorization of State Hazardous Waste Management Program Revisions | |
81 FR 53186 - Notice of Funding Availability for the Small Business Transportation Resource Center Program | |
81 FR 53191 - Notice of Funding Availability for the Small Business Transportation Resource Center Program | |
81 FR 53033 - National Environmental Policy Act Implementing Procedures and Categorical Exclusions | |
81 FR 53204 - Amendment of Americans With Disabilities Act Title II and Title III Regulations To Implement ADA Amendments Act of 2008 |
Agricultural Marketing Service
Food and Nutrition Service
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Army Department
Defense Acquisition Regulations System
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Coast Guard
Fish and Wildlife Service
Geological Survey
Alcohol, Tobacco, Firearms, and Explosives Bureau
Antitrust Division
Employment and Training Administration
Federal Aviation Administration
Federal Transit 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.
On April 2, 2001, the U.S. Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) implemented the Livestock Mandatory Reporting (LMR) program as required by the Livestock Mandatory Reporting Act of 1999 (1999 Act). The LMR program was reauthorized in October 2006 and September 2010. On September 30, 2015, the Agriculture Reauthorizations Act of 2015 (2015 Reauthorization Act) reauthorized the LMR program for an additional 5 years until September 30, 2020, and directed the Secretary of Agriculture (Secretary) to amend the LMR swine reporting requirements. This final rule incorporates the swine reporting revisions contained within the 2015 Reauthorization Act and a minor revision to the lamb reporting requirements under the Agricultural Marketing Act of 1946, USDA Livestock Mandatory Reporting regulations.
This final rule is effective October 11, 2016.
Michael Lynch, Director; Livestock, Poultry, and Grain Market News Division; Livestock, Poultry, and Seed Program; AMS, USDA, Room 2619-S, STOP 0252; 1400 Independence Avenue SW., Washington, DC 20250-0251; telephone (202) 720-4868; fax (202) 690-3732; or email
The 1999 Act was enacted into law on October 22, 1999, [Pub. L. 106-78; 113 Stat. 1188; 7 U.S.C. 1635-1636(i)] as an amendment to the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621
The statutory authority for the program lapsed on September 30, 2005. In October 2006, Congress passed the Livestock Mandatory Reporting Reauthorization Act (2006 Reauthorization Act) [Pub. L. 109-296]. The 2006 Reauthorization Act re-established the regulatory authority for the continued operation of LMR through September 30, 2010. On July 15, 2008, the LMR final rule became effective (73 FR 28606, May 16, 2008).
On September 28, 2010, Congress passed the Mandatory Price Reporting Act of 2010 (2010 Reauthorization Act) [Pub. L. 111-239]. The 2010 Reauthorization Act reauthorized LMR for an additional 5 years through September 30, 2015. On January 7, 2013, the LMR final rule became effective (77 FR 50561, August 22, 2012).
On September 30, 2015, the Agriculture Reauthorizations Act of 2015 (2015 Reauthorization Act) [Pub. L. 114-54] was enacted; it reauthorized the LMR program for an additional 5 years through September 30, 2020, and amended the reporting requirements for swine purchase types and late afternoon swine purchases. On February 29, 2016, AMS published a proposed rule for these swine reporting changes and for changes to lamb reporting requirements as requested by the lamb industry which included new definitions and requirements for packers to report lambs committed for future delivery to the packer and prices of pelts paid to the producer and an amendment to the definition of packer-owned lambs (81 FR 10132, February 29, 2016). The proposed rule included a 60-day comment period. AMS received 11 timely comments. Nine were substantive and relevant and two were outside the scope of regulation.
This final rule incorporates the swine reporting revisions contained within the 2015 Reauthorization Act and the lamb reporting revision to amend the definition of packer-owned lambs as requested by the lamb industry, under the USDA LMR regulations. Based on the comments received, AMS chose not to incorporate in this final rule the proposed reporting revisions concerning lambs committed for future delivery and prices of pelts paid to producers due to the burden increase on the packers affected by this rule and the possible negative implications on U.S. trade within domestic and international markets.
AMS received nine relevant comments from organizations representing livestock producers and meat packers and processors. A review of AMS responses to the comments follows below.
Under the LMR regulations, certain cattle, swine and lamb packers and processors, and lamb importers are required to report purchases of livestock for slaughter and sales of meat products to AMS. This final rule amends the LMR regulations for swine reporting and lamb reporting requirements as described below.
The swine reporting requirement revisions within this final rule are authorized through the 2015 Reauthorization Act. This final rule minimally increases the reporting burden for swine packers.
Swine packers are required to report purchase data by four types of purchase: negotiated purchase, other market formula purchase, swine or pork market formula purchase, or other purchase arrangement. A `negotiated purchase' is a cash or spot market purchase by a packer under which the base price for the swine is determined by seller-buyer interaction and agreement on a delivery day; and the swine are scheduled for delivery to the packer not more than 14 days after the date on which the swine are committed to the packer. An `other market formula purchase' is a purchase of swine by a packer in which the pricing mechanism is a formula price based on any market other than the market for swine, pork, or pork product, and includes a formula purchase in a case where the price formula is based on one or more futures or options contracts. A `swine or pork market formula purchase' is a purchase of swine by a packer in which the pricing mechanism is a formula price based on a market for swine, pork, or pork product, other than a future or option for swine, pork, or pork product. An `other purchase arrangement' is a purchase of swine by a packer that is not a negotiated purchase, swine or pork market formula purchase, or other market formula purchase, and does not involve packer-owned swine.
The 2015 Reauthorization Act amended the swine reporting requirements, subpart C of part 59, by adding an additional purchase type definition for negotiated formula purchases of swine, which requires swine packers to report swine purchased on a negotiated formula basis as a separate purchase type. As defined in § 59.200, the term “negotiated formula” is a swine or pork market formula purchase under which the formula is determined by negotiation on a lot-by-lot basis, and swine are scheduled for delivery to the packer not
Adding a negotiated formula purchase type provides market participants with more specific information about the various purchase methods used in the daily marketing of swine and a better understanding of the marketplace concerning formulated prices and spot negotiated prices.
Packers are required to report purchase data for barrows and gilts for a morning report not later than 10 a.m. Central time and an afternoon report not later than 2 p.m. Central time. The information to be reported is the same for the morning and afternoon reports and includes an estimate of the total number of barrows and gilts purchased by each type of purchase, the total number of barrows and gilts purchased, the base price paid for all negotiated purchases of barrows and gilts, and the base price paid for each type of purchase of barrows and gilts other than through a negotiated purchase. This information must be submitted for all covered transactions that occur within one-half hour of each specified reporting time. Packers completing transactions during the half-hour prior to the previous reporting time report those transactions at the next prescribed reporting time.
The 2015 Reauthorization Act directed the Secretary to include in the morning and afternoon daily reports for the following day, the purchase information for any barrows and gilts purchased or priced after the afternoon reporting time of the current reporting day. Under this final rule, the required information reported remains the same for the morning and afternoon reports; however, the morning report requirements under § 59.202 now requires packers to report purchase data for barrows and gilts purchased after 1:30 p.m. Central time of the previous reporting day and up to that time of the reporting day for the total number of barrows and gilts purchased, the base price paid for all negotiated purchases of barrows and gilts, and the base price paid for each type of purchase of barrows and gilts other than through a negotiated purchase. Under this final rule, the LMR regulations for the afternoon reporting requirements remain unchanged. The inclusion of the late afternoon swine purchase information in the following day's reports increases the volume of barrows and gilts shown in the daily morning and afternoon purchase reports and better represents the daily market conditions.
Since the implementation of LMR in 2001 and its subsequent revisions, the U.S. lamb industry has become more concentrated at all levels of the production system through consolidation, impacting AMS' ability to publish certain market information in accordance with the confidentiality provisions of the 1999 Act. To help address this issue, the Livestock Marketing Information Center, an independent provider of economic analyses concerning the livestock industry, conducted an analysis of the current LMR program for lamb reporting in 2013 at the request of the American Sheep Industry Association, an industry organization representing sheep producers throughout the U.S.
The revision to the lamb reporting requirements, subpart D of part 59, is an amended definition under § 59.300 for the term “packer-owned lambs.” This final rule amends the definition for the term “packer-owned lambs” to cover lambs owned by a packer for at least 28 days immediately before slaughter.
The last section of this document contains three appendices; the proposed rule contained four. As explained in section II above, based on the comments received, AMS chose not to incorporate in this final rule the proposed reporting revisions concerning lambs committed for future delivery and prices of pelts paid to producers. Therefore, AMS deleted appendix B in its entirety, removed all references to lamb forms in appendices C and D, and re-lettered appendices C and D as appendices B and C, respectively. Appendix A lists the forms used by swine packers required to report information under the LMR program. Appendix B provides a description of the forms, while appendix C contains the actual reporting forms. These appendices will not appear in the Code of Federal Regulations.
With this final rule, all form and guideline identification numbers associated with the LMR program are updated to reflect the change in the program name from the AMS Livestock and Seed Program (LS) to the AMS Livestock, Poultry, and Seed Program (LPS); therefore, form number designations are changed from LS-XXX to LPS-XXX. This change to the form numbers is included in the request for an extension of a currently approved information collection for OMB 0581-0186 (Commodities Covered by the Livestock Mandatory Reporting Act of 1999); and in the appendices of this final rule.
Amendments to two swine reporting forms, LPS-118 Swine Prior Day Report and LPS-119 Swine Daily Report, were made to include the new purchase type under this final rule, “negotiated formula purchase.” One form for swine reporting, LPS-119 Swine Daily Report, requires an amendment to the description of the form to include the reporting of the late afternoon purchased barrows and gilts from the previous reporting day in the following reporting day's daily reports, as shown in appendix B.
This final rule is being issued by USDA with regard to the LMR program in conformance with Executive Orders 12866 and 13563.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives, and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This action has been designated as a “non-significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has waived the review process for this action.
This final rule amends the reporting requirements for swine packers by adding a new purchase type for negotiated formula purchases of barrows and gilts, and including late afternoon purchases of barrows and gilts from the previous reporting day in the morning and afternoon daily reports of the current reporting day. For swine packers, this final rule applies only to federally inspected swine processing facilities that slaughtered an average of at least 100,000 swine per year during the immediately preceding 5 calendar years and a person that slaughtered an average of at least 200,000 sows, boars, or combination thereof per year during the immediately preceding 5 calendar years. Additionally, in the case of a swine processing plant or person that did not slaughter swine during the immediately preceding 5 calendar years, it would be considered a packer if the Secretary determines the processing plant or person should be considered a packer under this subpart after considering its capacity.
Approximately 36 individual pork packing companies representing a total of 55 individual plants are required to report information to AMS. Based on the NAICS size standard for meat packing companies with 500 or less employees, AMS estimates that 24 of these 36 pork packing companies would be considered small businesses, representing 27 individual plants that are required to report. The figure of 55 plants required to report represents 8.9 percent of the federally inspected swine plants in the U.S. The remaining 91.1 percent of swine plants, nearly all estimated to qualify as small business, are exempt from mandatory reporting.
To implement the swine reporting changes in this final rule, AMS estimated the total annual burden on each swine packer to be $108, which includes the annual share of initial startup costs of $415. There is no annual cost increase associated with electronically submitting data or for the storage and maintenance of electronic files submitted to AMS due to this final rule.
For lamb reporting, this final rule amends the definition of the term “packer-owned lambs” to include lambs owned by a packer for at least 28 days immediately before slaughter.
Under the 2015 Reauthorization Act, a lamb packer includes any person with 50 percent or more ownership in a facility that slaughtered or processed an average of 35,000 lambs during the immediately preceding 5 calendar years, or that did not slaughter or process an average of 35,000 lambs during the immediately preceding 5 calendar years if the Secretary determines that the processing plant should be considered a packer after considering its capacity.
The LMR regulations require 10 lamb packers to report information, which is less than 2 percent of all federally inspected lamb plants. Therefore, approximately 98 percent of lamb packers are exempt from reporting information by this final rule. Based on the NAICS size standard for meat packing companies with 500 or less employees and its knowledge of the lamb industry, AMS estimates that all lamb packing companies currently required to report under LMR would be considered small businesses. As this final rule amends a definition and does not impose additional burdens, AMS estimates no costs to implement the lamb reporting changes in this final rule. There is no annual cost increase associated with electronically submitting data or for the storage and maintenance of electronic files submitted to AMS due to this final rule.
Each packer and importer required to report information to USDA under LMR must maintain such records as are necessary to verify the accuracy of the information provided to AMS. This includes information regarding price, class, head count, weight, quality grade, yield grade, and other factors necessary to adequately describe each transaction. These records are already kept by the industry. Reporting packers and importers are required to maintain and make available the original contracts, agreements, receipts, and other records associated with any transaction relating to the purchase, sale, pricing, transportation, delivery, weighing, slaughter, or carcass characteristics of all livestock, and to maintain these records for a minimum of two years. Packers and importers are not required to report any other new or additional information they do not generally have available or maintain. Further, they are not required to keep any information that would prove unduly burdensome to maintain.
In addition, AMS has not identified any relevant federal rules currently in effect that duplicate, overlap, or conflict with this rule. Professional skills required for recordkeeping under the LMR regulations are not different than those already employed by the reporting entities. Reporting is accomplished using computers or similar electronic means. This final rule does not affect the professional skills required for recordkeeping already employed by the reporting entities. Reporting will be accomplished using computers or similar electronic means. AMS believes the skills needed to maintain such systems are already in place in those small businesses affected by this rule.
AMS recognizes that most of the economic impact of this final rule on those small entities required to report involves the manner in which information must be reported to the Secretary. However, in developing this final rule, AMS considered other means by which the objectives of this final rule could be accomplished, including reporting the required information by telephone, facsimile, and regular mail. AMS believes electronic submission to be the only method capable of allowing AMS to collect, review, process, aggregate, and publish reports while complying with the specific time-frames set forth in the 1999 Act and regulation.
To respond to the concerns of smaller operations, AMS developed a web-based input form for submitting data online. Based on prior experience, AMS found that some of the smaller entities covered under mandatory price reporting would benefit from such a web-based submission system. Accordingly, AMS developed such a system for program implementation.
Additionally, to further assist small businesses, AMS may provide for an exception to electronic reporting in emergencies, such as power failures or loss of Internet accessibility, or in cases when an alternative is agreeable between AMS and the reporting entity.
Other than these alternatives, there are no other practical and feasible alternatives to the methods of data transmission that are less burdensome to small businesses. AMS will work actively with those small businesses required to report and minimize the burden on them to the maximum extent practicable.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), we included the changes in reporting and recordkeeping requirements for 7 CFR part 59 associated with this action into the program's request for an extension of a currently approved information collection for OMB 0581-0186 (Commodities Covered by the Livestock Mandatory Reporting Act of 1999).
This final rule was reviewed under Executive Order 12988, Civil Justice Reform. This final rule is not intended to have retroactive effect. Section 259 of the 1999 Act prohibits states or political subdivisions of a state to impose any requirement that is in addition to, or inconsistent with, any requirement of the 1999 Act with respect to the submission or reporting of information, or the publication of such information, on the prices and quantities of livestock or livestock products. In addition, the 1999 Act does not restrict or modify the authority of the Secretary to administer or enforce the Packers and Stockyards Act of 1921 (7 U.S.C. 181
AMS reviewed the potential civil rights implications of this final rule on minorities, women, or persons with disabilities to ensure that no person or group shall be discriminated against on the basis of race, color, national origin, gender, religion, age, disability, sexual orientation, marital or family status, political beliefs, parental status, or protected genetic information. This review included persons who are employees of the entities that are subject to this regulation. This final rule does not require affected entities to relocate or alter their operations in ways that could adversely affect such persons or groups. Further, this final rule does not deny any persons or groups the benefits of the program or subject any persons or groups to discrimination.
This final rule was reviewed under Executive Order 13132, Federalism. This Order directs agencies to construe, in regulations and otherwise, a federal statute to preempt state law only when the statute contains an express preemption provision. This final rule is required by the 1999 Act. Section 259 of the 1999 Act, Federal Preemption states, “In order to achieve the goals, purposes, and objectives of this title on a nationwide basis and to avoid potentially conflicting State laws that could impede the goals, purposes, or objectives of this title, no State or political subdivision of a State may impose a requirement that is in addition to, or inconsistent with, any requirement of this subtitle with respect to the submission or reporting of information, or the publication of such information, on the prices and quantities of livestock or livestock products.”
Prior to the passage of the 1999 Act, several states enacted legislation mandating, to various degrees, the reporting of market information on transactions of cattle, swine, and lambs conducted within that particular state. However, since the federal LMR program was implemented on April 2, 2001, these state programs are no longer in effect. Therefore, there are no federalism implications associated with this rulemaking.
This final rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. AMS considered the potential implications of this final rule to ensure this regulation does not have substantial and direct effects on Tribal governments and was found to not have significant Tribal implications.
Cattle, Hogs, Lamb, Livestock, Sheep, Swine.
For the reasons set forth in the preamble, 7 CFR part 59 is amended as follows:
7 U.S.C. 1635-1636i.
The additions and revisions read as follows:
(1) The formula is determined by negotiation on a lot-by-lot basis; and
(2) The swine are scheduled for delivery to the packer not later than 14 days after the date on which the formula is negotiated and swine are committed to the packer.
(3) A swine or pork market formula purchase;
(4) Other purchase arrangement; and
(5) A negotiated formula purchase.
(b) * * *
(2) The total number of barrows and gilts, and barrows and gilts that qualify as packer-owned swine, purchased since 1:30 p.m. central time of the previous reporting day and up to that time of the reporting day through each type of purchase;
(3) All purchase data for base market hogs purchased since 1:30 p.m. central time of the previous reporting day and up to that time of the reporting day through negotiated purchases;
(4) All purchase data for base market hogs purchased through each type of purchase other than negotiated purchase since 1:30 p.m. central time of the previous reporting day and up to that time of the reporting day, unless such information is unavailable due to pricing that is determined on a delayed basis. The packer shall report information on such purchases on the first reporting day or scheduled reporting time on a reporting day after the price has been determined.
Nuclear Regulatory Commission.
Regulatory guide; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing Revision 2 to Regulatory Guide (RG) 8.10, “Operating Philosophy for Maintaining Occupational Radiation Exposures as Low as is Reasonably Achievable.” This revision describes methods and procedures that the NRC staff considers acceptable for maintaining radiation exposures to employees and the public as low as is reasonably achievable (ALARA).
Revision 2 to RG 8.10 is available on August 11, 2016.
Please refer to Docket ID NRC-2015-0286 when contacting the NRC about the availability of information regarding this document. You may obtain publically-available information related to this document using the following methods:
•
•
•
Regulatory guides are not copyrighted, and NRC approval is not required to reproduce them.
Casper Sun, telephone: 301-415-1646, email:
The NRC is issuing a revision to an existing guide in the NRC's “Regulatory Guide” series. This series was developed to describe and make available to the public information regarding methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, techniques that the NRC staff uses in evaluating specific issues or postulated events, and data that the NRC staff needs in its review of applications for permits and licenses.
Revision 2 of RG 8.10 was issued with a temporary identification of Draft Regulatory Guide, DG-8033. Revision 2 addresses changes identified since Revision 1 was issued in September 1975 (the NRC issued Revision 1-R in May 1977). In 1991, the NRC promulgated amendments to part 20 of title 10 of the
In addition, this revision includes additional guidance from operating ALARA experience since 1975. It provides more details describing management responsibilities to ensure commitment to ALARA.
The NRC published a notice of availability of DG-8033 in the
This regulatory guide 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.
This regulatory guide provides updated guidance on the methods acceptable to the NRC staff for complying with the NRC's regulations associated with ALARA. The regulatory guide applies to current and future applicants for, and holders of:
• Operating licenses for nuclear power reactors under 10 CFR part 50.
• approvals issued under subpart B, C, E, and F of 10 CFR part 52 (“protected applicants and licensees”).
• licenses issued under 10 CFR part 70 to possess or use, at any site or contiguous sites subject to licensee control, a formula quantity of strategic special nuclear material, as defined in 10 CFR 70.4.
• operating licenses for nuclear non-power reactors under 10 CFR part 50.
• specific domestic licenses to manufacture or transfer certain items containing byproduct material under 10 CFR part 32.
• specific domestic licenses of broad scope for byproduct material under 10 CFR part 33.
• licenses for industrial radiography under 10 CFR part 34.
• licenses for medical use of byproduct material under 10 CFR part 35.
• licenses for irradiators under 10 CFR part 36.
• licenses for well logging under 10 CFR part 39.
• licenses for source material under 10 CFR part 40.
• certificates of compliance for packaging of radioactive material under 10 CFR part 71.
• licenses for independent spent fuel storage installations under 10 CFR part 72.
The backfitting provisions in 10 CFR 50.109, 70.76, and 72.62, and the issue finality provisions in 10 CFR part 52 do not apply to holders of licenses under 10 CFR parts 31, 32, 33, 34, 35, 36, 39, 40, or 71, or to holders of licenses for non-power reactors under 10 CFR part 50, unless those licensees also have an NRC regulatory approval under 10 CFR parts 50 or 52 (for a nuclear power reactor), 70, or 72. In addition, the issuance of this regulatory guide would not constitute backfitting under 10 CFR 50.109, 70.76, or 72.62, and would not otherwise be inconsistent with the issue finality provisions in 10 CFR part 52. As discussed in the “Implementation” section of this regulatory guide, the NRC has no intention of initiating any regulatory action that would require the use of this regulatory guide by current holders of 10 CFR part 50 operating licenses, 10 CFR part 52, subpart B, C, E, or F approvals, 10 CFR part 70 licenses, or 10 CFR part 72 licenses.
If a licensee protected by a backfitting or issue finality provision (a “protected licensee”) voluntarily seeks a license amendment or change, and (1) the NRC staff's consideration of the request involves a regulatory issue directly relevant to this revised regulatory guide and (2) the specific subject matter of this regulatory guide is an essential consideration in the NRC staff's determination of the acceptability of the licensee's request, then the NRC staff may request that the licensee either follow the guidance in this regulatory guide or provide an equivalent alternative process that demonstrates compliance with the underlying NRC regulatory requirements. Such a request by NRC staff is not considered backfitting as defined in 10 CFR 50.109(a)(1), 70.76(a)(1), or 72.62(a), or a violation of any applicable finality provisions in 10 CFR part 52.
If a protected licensee believes that the NRC is either using this regulatory guide or requesting or requiring the protected licensee to implement the methods or processes in this regulatory guide in a manner inconsistent with the discussion in the Implementation section of this regulatory guide, then the protected licensee may file a backfit appeal with the NRC in accordance with the guidance in NRC Management Directive 8.4, “Management of Facility-Specific Backfitting and Information Collection” (ADAMS Accession No. ML12059A460); and NUREG-1409, “Backfitting Guidelines” (ADAMS Accession No. ML032230247).
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain Continental Motors, Inc., (CMI) San Antonio (formerly known as Airmotive Engineering Corp. (AEC)), replacement parts manufacturer approval (PMA) cylinder assemblies marketed by Engine Components International Division (ECi). On July 17, 2015, AEC was purchased by CMI and is now operating as “Continental Motors—San Antonio.” These cylinder assemblies are used on all CMI model -520 and -550 reciprocating engines, and on all other CMI engine models approved for the use of model -520 and -550 cylinder assemblies, such as the CMI model -470 when modified by supplemental type certificate (STC). This AD was prompted by reports of multiple cylinder head-to-barrel separations and cracked and leaking aluminum cylinder heads. This AD requires removal of the affected cylinder assemblies, including overhauled cylinder assemblies, according to a phased removal schedule. We are issuing this AD to prevent failure of the cylinder assemblies, which could lead to failure of the engine, in-flight shutdown, and loss of control of the airplane.
This AD is effective September 15, 2016.
For service information identified in this AD, contact Continental Motors, Inc., San Antonio, 9503 Middlex Drive, San Antonio, TX 78217; phone: 210-820-8100; Internet:
You may examine the AD docket on the Internet at
Jurgen E. Priester, Aerospace Engineer, Delegation Systems Certification Office, FAA, Rotorcraft Directorate, 10101 Hillwood Parkway, Fort Worth, TX 76177; phone: 817-222-5190; fax: 817-222-5785; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain CMI San Antonio replacement PMA cylinder assemblies marketed by ECi. These assemblies are used on CMI model -520 and -550 reciprocating engines, and all other CMI engine models approved for the use of models -520 and -550 cylinder assemblies such as the CMI model -470 when modified by STC. The NPRM published in the
We received several hundred comments to our August 12, 2013, NPRM. In response to this high-level of public interest, we undertook several actions to help the public understand and provide further comment on our proposed rule. These actions included:
• Extending the comment period to the August 12, 2013, NPRM;
• publishing an IRFA; and
• adding several technical documents that were posted to Docket No. FAA-2012-0002 (see Addresses section of this final rule for information on locating the docket) on September 20, 2013.
Documents added to the docket include:
(1) FAA Safety Recommendations 08.365, 08.366, and 11.216, which were written against the subject ECi cylinder assemblies;
(2) NTSB Safety Recommendation A-12-7, also written against the subject ECi cylinder assemblies;
(3) The original ECi AD worksheet for 2011-NE-42-AD, which documents the reasons for the proposed rule;
(4) A list of separations of ECi cylinder assemblies;
(5) A white paper
(6) Figures showing ECi Dome Separation Failures;
(7) A briefing on “ECi Cylinder Head Failures on Continental IO 520 & 550 Engines”; and
(8) FAA Policy Memorandum on “Risk Assessment for Reciprocating Engine Airworthiness Directives,” dated May 24, 1999.
We notified the public of these actions on September 26, 2013, via the
We also determined that we needed to add to the docket a detailed regulatory flexibility analysis to estimate the effects of the proposed rule on small business entities. We published an Initial Regulatory Flexibility Analysis in Docket FAA-2012-0002 on March 12, 2014 (79 FR 13924).
Because the response to our August 12, 2013, NPRM was so negative—we received over 500 comments, most disagreeing with the NPRM—we established a Challenge Team to review our proposed AD. The Challenge Team was an independent, multi-disciplinary team, consisting of three FAA CSTAs, FAA Aircraft Certification Service (AIR) managers, and other FAA technical experts from all four Directorates.
The Challenge Team reviewed the technical information that formed the basis for our proposed AD and the public comments we had received concerning our proposal. The CSTA for Aircraft Safety Analysis also independently computed a new risk assessment using the earlier failure reports, and the additional failure reports that we received from the public as comments to our August 12, 2013, NPRM.
Based on their review of this data and the new risk assessment of failures of affected cylinder assemblies, the Challenge Team determined that an AD was still required. But, they suggested changes to make compliance less aggressive and substantially reduce cost. Their recommended changes included revising the compliance schedule in favor of a phased removal schedule, clarifying that overhauled cylinder assemblies are included in the proposed phased removal schedule, eliminating the reporting requirement for removed cylinder assemblies, and removing the requirement for initial and repetitive inspection.
We adopted the Challenge Team's recommendations, and we then published them as an SNPRM in the
We also responded in our January 8, 2015, SNPRM, to the several hundred comments that we received to the August 12, 2013, NPRM. Many of these comments were repetitious, so we grouped the comments and provided our responses to the different groups,
The NTSB, in its comments to our August 12, 2013, NPRM; January 8, 2015, SNPRM; and in its Safety Recommendation A-12-07, did not fully support our approach to resolving the unsafe condition that is the subject of this final rule. Therefore, we met with the NTSB on June 9, 2015 to understand the technical basis for their recommendation and their technical objections to our proposed AD. At this meeting, we presented the NTSB the technical information upon which we based our AD as amended. Information that was reviewed included failure reports, the risk assessment by the FAA's CSTA for Aircraft Safety Analysis, FAA safety recommendations, and the data supporting our conclusion that field inspections had an insufficient probability of cylinder failure detection.
The NTSB noted in this meeting that Safety Recommendation A-12-7, and the NTSB's comments to the August 12, 2013, NPRM and the January 8, 2015, SNPRM, were based on the information available to them at that time. The NTSB also indicated it would reassess its recommendation and comments to our proposed rule based on the presentations and the supporting data that we had presented.
We received additional comments to our August 12, 2013, NPRM and our January 8, 2015, SNPRM, requesting that we provide additional information that supports this AD. Commenters also requested that we identify the data that we relied on in drafting this AD and to explain why that data supported our conclusion that an unsafe condition exists. Based on these comments, we concluded that further additional public participation in our proposed AD was appropriate. Specifically, we concluded that we would post to the docket the additional technical information responsive to the comments. So, on June 23, 2015, we posted the additional technical information to Docket No. FAA-2012-0002 (see
(1) The risk analysis process conducted by the FAA's CSTA for Aircraft Safety Analysis—referenced in Docket No. FAA-2012-0002 as the “Proposed Airworthiness Directive for ECi Cylinders Risk Analysis Process,” referred to herein as the “risk analysis”;
(2) A risk analysis using the Small Airplane Risk Analysis (SARA) methods used by the FAA's Small Airplane Directorate (SAD)—referenced in Docket No. FAA-2012-0002 as “SARA Worksheet Systems/Propulsion”;
(3) A June 2011, presentation by AEC to the FAA concerning its ECi cylinder assemblies;
(4) A list of ECi cylinder assembly failure reports consisting of only those reports where both cylinder serial number and time in service are included in the reports;
(5) A list of additional failures of ECi cylinder assemblies reported by a maintenance organization; and
(6) AEC Technical Report 1102-13, dated April 30, 2011.
We published a second SNPRM in the
Also, since many commenters had cited NTSB support for their positions, we wanted to clarify our rationale for disagreeing with the compliance actions proposed by the NTSB in its Safety Recommendation A-12-7, and the NTSB's comments to the August 12, 2013, NPRM and the January 8, 2015, SNPRM.
The NTSB did submit a final comment to our August 28, 2015, SNPRM, that was posted to the docket on November 23, 2015. In the NTSB's final comment, the NTSB indicated that it now considers that our proposed compliance actions satisfy the intent of Safety Recommendation A-12-7. The information we covered with the NTSB, including copies of FAA presentations to the NTSB, were subsequently posted to Docket No. FAA-2012-0002 (see
We have, through the August 12, 2013, NPRM; the September 26, 2013, posting of additional information; our extension of the August 12, 2013, NPRM comment period; the January 8, 2015, SNPRM; and August 28, 2015, SNPRM, given the public the opportunity to participate in developing this AD. The public, as noted already, has participated deeply in this rule making; providing hundreds of comments.
This final rule includes our responses to any previously unaddressed comments to the August 12, 2013, NPRM and to the January 8, 2015, SNPRM, that we may have left without response, and to the August 28, 2015, SNPRM.
To organize comments and facilitate their review, we again grouped like comments and responses. These groupings in this final rule's comments section are:
(1) Comments to withdraw or revise the SNPRMs for technical reasons—these comments, and the resulting groupings, were similar to those we used in responding to the August 12, 2013, NPRM. They include, for example, requests to withdraw the SNPRM because the commenters claim that ECi cylinder assemblies are not unsafe; airplanes can operate safely with a separated cylinder head; or the root cause of cylinder failure is unknown.
(2) Comments to the FAA's risk assessment processes and policies—these comments generally asserted that the SNPRMs should be withdrawn because the FAA had not appropriately followed its risk assessment processes and policies in determining that the failure of ECi cylinder assemblies represents an unsafe condition.
(3) Comments to the FAA's rulemaking processes—these comments generally requested that the SNPRMs be withdrawn, alleging that the FAA had failed to follow its rulemaking processes and was adopting a rule that is “arbitrary and capricious.”
(4) Comments to the cost of compliance—these comments indicated that the cost of compliance to this AD was higher than the FAA has estimated and will have a substantial effect on small entities.
(5) Administrative comments—these were generally comments that did not pertain to the substance of this AD, such as requests for names and phone numbers of FAA personnel involved in this rulemaking.
(6) Support for the SNPRMs—these were comments in support of issuing the SNPRMs.
One operator observed that operators who use the ECi cylinder assemblies and operate them within limits and with good instrumentation are not having issues. This operator noted that everyone, with the exception of the FAA, believes that overheating beyond CHT limits by operators has a direct effect on cylinder head separation.
Several operators and mechanics have reported that they successfully passed the compression/soap test with a partially separated cylinder. Others have reported that they successfully passed the compression/soap test and then experienced an in-flight separation before the next scheduled 50-hour inspection.
Therefore, we conclude that these tests are not sufficiently reliable. Also, engine overhaul is not a requirement for all operators. Therefore, tying the proposed recurrent inspection to engine overhaul would not resolve the unsafe condition. Based on its comment to the August 28, 2015, SNPRM, we know that the NTSB now considers this rule consistent with the rationale they have provided in the past in support of NTSB Safety Recommendation A-12-7 regarding these affected cylinder assemblies (Reference NTSB Comment FAA-2012-0002-0653, dated September 24, 2015 in Docket FAA-2012-0002). We did not change this AD based on this comment.
Later, as part of the Challenge Team's meeting in September, 2014, the CSTA for Aircraft Safety performed a risk analysis that confirmed the need for this AD and shaped its compliance plan. We compared the results of the CSTA's risk analysis to the guidelines used by the SAD in its SARA and to the guidelines in the E&PD's CAAP Handbook and determined that an AD is required.
FAA Order 8040.4A requires a risk assessment methodology as outlined in the Order. FAA Order 8040.4A notes that the safety risk is a composite of two factors: The potential “severity” or worst possible consequence(s) or outcome of an adverse event that is assumed to occur, and also the expected frequency of occurrence or likelihood of occurrence (failure rate) for that specific adverse event. Each of these factors is assessed independent of the other and then entered as separate inputs into a risk matrix that yields an overall level of risk for the event.
We performed the risk assessment required by FAA Order 8040.4A and concluded that this AD was necessary. Therefore, our August 12, 2013, NPRM, as revised by the January 8, 2015 SNPRM, and as republished on August 28, 2015, are consistent with FAA Order 8040.4A, FAA Order 8110.107A, and the CAAP Handbook. We did not change this AD based on this comment.
The risk analysis performed by the FAA's CSTA for Aircraft Safety Analysis, recommends removal and replacement of the affected ECi cylinder assemblies as specified in this AD. The SARA applied to failures of ECi cylinder assemblies confirms that an AD is necessary. AEC Technical Report 1102-13 states that a root cause for the first thread separations was an inherent design deficiency in the form of insufficient head-to-barrel design interference fit. AEC Technical Report 1102-13 recommended withdrawing these cylinder assemblies from service. We did not withdraw the August 28, 2015, SNPRM.
We analyze safety risk, per FAA Order 8040.4A, as a composite of two factors: The potential “severity” or worst possible consequence(s) or outcome of an adverse event that is assumed to occur, and also the “expected frequency of occurrence” for that specific adverse event. FAA Order 8040.4A directs us to assess both factors independently, then enter each as separate inputs into a risk matrix. The matrix yields an overall level of risk for the event. The overall risk is then categorized as either “Unacceptable Risk,” “Acceptable Risk with Mitigation,” or “Acceptable Risk.” The corrective action(s), if any, is driven by the assessed overall risk. Table C-1 of Appendix C of FAA Order 8040.4A defines five levels of severity and Table C-2 defines five levels of event frequency that are used in the determination of composite risk.
The FAA classification for the “severity” of an engine cylinder head separation event, per FAA Order 8040.4A, is “hazardous” for both single-engine and light-twin airplanes for several reasons. Cylinder head separations can significantly reduce the power of the airplane such that under some conditions it may not be able to safely takeoff and climb out. It could
Table C-2 in FAA Order 8040.4A defines “extremely improbable” as “So unlikely that it is not expected to occur, but it is not impossible.” It defines “extremely remote” as “Expected to occur rarely.” It defines “Remote” as “Expected to occur infrequently.” It defines “probable” as “Expected to occur often.” Finally, it defines “frequent” as “expected to occur routinely.”
Service history failure reports indicate that in a population of 43,000 cylinders, that 1 of every 1,000 cylinders could separate on average; either in the dome radius or the first thread. A single-engine airplane has six of these cylinders, so the actual risk of a separation of any one of those six cylinders for any given airplane is 6/1,000: 1 of every 166 engines. Similarly, a twin-engine airplane will have 12 cylinders, so the risk of experiencing a separation of one cylinder on a twin-engine aircraft is twice that of a single engine, 12/1,000, 1 of every 83 twin-engine airplanes that use these model cylinders.
Separation event under-reporting occurs. This is evidenced by RAM Aircraft's submittal of 23 additional reported failures of the subject ECi cylinders after the August 12, 2013 NPRM was issued. Photos of these failures are available in Docket No. FAA-2012-0002 (see
Figure C-1 of FAA Order 8040.4A is a risk matrix that yields an overall risk based on the severity classification and the assessed frequency of occurrence. Using the FAA severity classification of “hazardous” and the FAA assessed frequency of occurrence “Remote C”, yields an overall risk that is “unacceptable.” The corrective actions required by this final rule AD are based on and consistent with this overall risk assessment.
We, therefore, disagree with claims by RAM Aircraft and other commenters that a cylinder head separation will have a negligible effect on airplane safety. Also, several documented in-flight fires were precipitated by a cylinder head separation. We did not change this AD based on this comment.
Since we first published that rate information, we subsequently learned of more failures of affected ECi cylinders. Those additional failures would, if included, increase the ECi failure rate. We did not update the failure rate to higher than 32 times that of the OEM's because it did not affect our decision regarding this AD. We did not change this AD based on this comment.
The FAA has also issued ADs against other cylinder manufacturers, including mandating early retirement of cylinders to preclude cracking and separation. For example, ADs 2014-05-29 and 2007-04-19R1 both apply to certain Superior Air Parts cylinder assemblies. We did not change this AD based on this comment.
Second, we agree that some of the cylinder photographs uploaded to the docket are not cylinder assemblies affected by this AD. The FAA sent a letter to RAM Aircraft specifically requesting any information that RAM Aircraft had relative to failures of ECi cylinder assemblies, P/N AEC 631397, after we learned of possible failures that had not been reported as required by 14 CFR 21.3. RAM Aircraft responded to this request with the photographs and data that we uploaded into Docket FAA-2012-0002 (see
RAM Aircraft also commented that its previous comments were dispositioned in general categories in the January 8, 2015, SNPRM. RAM Aircraft, however, does not believe that the specifics of its comments were adequately or properly responded to, as required by the APA.
We carefully considered all comments we received. In our January 8, 2015, SNPRM and August 28, 2015, SNPRM, we responded to several hundred comments that we had received. Many were substantively the same and, therefore, as previously discussed we grouped them into several categories and answered the comments by category. The commenters have not indicated what, if anything, is improper about doing so nor how doing as we did might have violated the requirements of the APA. In this final rule, we responded to all remaining comments. We again used categories to group and answer comments that were similar if not identical. As to improperly recognizing affected ECi cylinder assemblies, we based our applicability of this AD on the reports of failure provided by ECi, the manufacturer, the reports required by 14 CFR that form the basis for the SDR, and the reports of the commenters themselves. We did not change this AD based on this comment.
The agency therefore, has articulated a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.”
We provided the public several opportunities to participate in this rule making; through extending the comment period and the two supplemental notices with their comment periods. For example, we first published an NPRM on August 12, 2013 (78 FR 48828), then published an extension of the comment period on September 26, 2013 (78 FR 59293) to allow the public additional time to comment on the proposed rule. We then issued a notice of availability of an initial regulatory flexibility analysis on March 12, 2014 (79 FR 13924). We reviewed the over 500 comments to the proposed rule that we had received, determined that we needed to review how we proposed to address the unsafe condition, formed a team to review the technical basis of the
After publication of the January 8, 2015, SNRPM, we issued the August 28, 2015, SNPRM to allow us to explain the rationale for this AD action. We also added several documents to Docket No. FAA-2012-0002 (see
We agree that we could better estimate the number of engines affected by this AD. We again reviewed our estimate. We now estimate that approximately 6,200 engines are affected by this AD. That number is based on our initial estimate of approximately 43,000 affected cylinder assemblies produced by ECi from 2002 to 2011. This number is supported by AEC Technical Report 1102-13, dated April 30, 2011. We then reduced 43,000 by our estimated number of cylinder assemblies that would have been removed from service.
Our review indicates that approximately 6,000 of the 43,000 cylinder assemblies would have been retired from service by the time of the publication of this AD. Therefore, we estimate 37,000 cylinder assemblies may be in service, as of June 1, 2016. We divided this number by 6 cylinders per engine to give us an estimated 6,167 engines in service. To increase the conservatism of our cost estimate, we rounded this figure to 6,200 engines. We revised our cost estimate to reflect these updated calculations.
We agree however, that engines with affected ECi cylinders installed may be installed on airplanes owned by individual operators in the general aviation community, who are less familiar with the concept of pro-rated costs to ADs. In consequence, we revised our estimate to use the full replacement cost of each cylinder assembly even though this will likely result in an over-estimate of the total cost of this AD. We, therefore, used the replacement cost of 6 cylinder assemblies in this final rule. This resulted in an increase from $4,202 in the SNPRMs to $11,520 in this final rule.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD as proposed.
We estimate that this AD affects about 6,200 CMI model IO-520, TSIO-520, IO-550, and IOF-550 reciprocating engines and all other CMI engine models approved for the use of CMI models -520 and -550 cylinder assemblies (such as the CMI model -470 when modified by STC), installed on airplanes of U.S. registry. The average labor rate is $85 per hour. We estimate 0.5 hours will be needed to check log books to determine if an engine is affected by this AD. We estimate that about 32 hours will be required to replace all six cylinder assemblies of an engine during overhaul. We estimate the cost of replacement of six cylinder assemblies to be, on average, about $11,520 per engine. Based on these figures, we estimate the total cost of this AD to U.S. operators to change all ECi cylinder assemblies to be $88,551,500.
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.
The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the Act. The FAA determined that this rule will have a significant economic impact on a substantial number of small entities and, accordingly, as required by Section 603(a) of the RFA, the FAA prepared and published an initial regulatory flexibility analysis (IRFA) (79 FR 13924, March 12, 2014) as part of the NPRM (79 FR 48828, August 12, 2013) and initial SNPRM (80 FR 1008, January 8, 2015) for this rule. For the second SNPRM, the FAA inadvertently stated that there would be no significant impact on a substantial number of entities. We also omitted the IRFA from the second SNPRM because we thought republication unnecessary as costs had not changed and the IRFA had already been published in the first SNPRM. In addition to the IRFA, Section 604 of the RFA also requires an agency to publish a final regulatory flexibility analysis (FRFA) in the
With this FRFA we correct our misstatement in the second SNPRM and restate our previous conclusions for the NPRM and in the first SNPRM that the rule will have a significant impact on a substantial number of small entities. Accordingly, in the following section we undertake the regulatory flexibility analysis.
Under Section 604(a) of the RFA, the Final analysis must address:
(1
This final rule AD was prompted by failure reports of multiple cylinder head-to-barrel separations and cracked and leaking aluminum cylinder heads. This AD will apply to certain CMI San Antonio replacement PMA cylinder assemblies marketed by ECi, used on the CMI model -520 and -550 reciprocating engines, and all other engine models approved for the use of CMI model -520 and -550 cylinder assemblies such as the CMI model -470 when modified by STC.
(2)
Danbury Holdings commented that the FAA had not provided the raw data that was used in the IRFA. We note that the provision of raw data is not required by the FAA's rulemaking procedures or orders.
In response to comments about problems with the repetitive compression/soap test proposed by the NPRM, the FAA agrees that these tests do not always reliably detect a cracked cylinder of this failure mode and therefore the costs associated with such tests outweigh the safety benefits. In the January 8, 2015 SNPRM the FAA removed the requirement for repetitive compression/soap inspection tests.
The FAA received comments questioning the reduction of the estimated number of smaller air service businesses (in addition to the estimated 609 small part 135 operators) that would be affected by the rule, from 5,000 in the IRFA to 2,000 in the January 8, 2015, SNPRM. We note that in both cases the FAA stated that a substantial number of small entities would be affected. Given the lack of available data, the FAA is unable to make an accurate estimate of the number of smaller air service businesses that will be affected by this rule, but acknowledges that this number is substantial. In addition to the 609 small part 135 operators, we therefore estimate in this final rule that the number of smaller air service businesses affected is substantial.
After publication of the NPRM and after publication of each of the two SNPRMs, we also received comments from small businesses concerning understated compliance costs. Some commenters stated that the labor rate and the hours required to replace an affected engine's cylinders are underestimated. We agree with this comment in part and have increased our estimate of the labor hours required to replace an affected engine's six cylinder assemblies from 18 to 32 hours, with a corresponding labor cost increase from $1,530 to $2,720.
In response to comments we have also increased our cost of materials estimate from a loss-of-service estimate of $4,202 to the full cost to replace all six cylinders, which has increased to $11,520. Our estimate of the total cost to replace all six cylinders has therefore increased from $5,732 to $14,240.
After publication of the August 28, 2015, SNPRM, we received negative comments concerning the inadvertent change from our original determination of a significant economic impact on a
(3)
The SBA did not submit comments.
(4)
Of the 610 part 135 operators we found to be affected by this rule, we identified 609 that meet the Small Business Administration (SBA) definition of a small entity (entities with 1,500 or fewer employees) that will be affected by this final rule. On this basis alone, we conclude that the final rule will affect a substantial number of small entities. In addition, we estimate that a substantial, but undetermined number of smaller air services businesses will be affected by this final rule. The FAA is unaware of the assets or financial resources of these businesses. The affected part 135 and smaller air services fly fixed wing aircraft; employ less than 1,500 employees; and conduct a variety of air services such as fly passengers and cargo for hire.
(5)
The FAA estimates 0.5 hours will be needed to check log books to determine if an engine is affected by this AD. At a wage rate of $85 per hour, the estimated cost will be $42.50 per engine. As the affected small part 135 operators have between one and 88 affected airplanes, the costs of this requirement range from $42.50 to $3740 per part 135 operator.
This AD applies to certain CMI model IO-520, TSIO-520, IO-550, and IOF-550 reciprocating engines and all other engine models approved for the use of CMI models -520 and -550 cylinder assemblies (such as the CMI model -470 when modified by STC), installed on airplanes of U.S. registry. For the affected engines the AD requires replacement of the cylinder assemblies at reduced times-in-service.
As noted above our estimate of the total cost to replace all six cylinders has increased from $5,732 to $14,240. As the number of airplanes held by affected small part 135 operators ranges from one to 88, the costs of required cylinder assembly replacement per operator range from about $14.2 thousand to about $1.3 million.
To determine whether compliance costs will have a significant economic impact, we measured the cost of replacing cylinder assemblies of affected engines relative to the value of the affected airplanes held by the small part 135 operators. The estimated asset value of the affected airplanes held by the small part 135 operators ranges from $22,000 to $19.6 million. We find that the cost of replacing cylinder assemblies relative to affected airplane asset value is greater than 5 percent for 468 of the 609 affected small part 135 operators.
(6)
In response to comments about problems with repetitive compression/soap test, the FAA agrees that these tests do not always reliably detect a cracked cylinder of this failure mode and the costs associated with such tests outweigh the safety benefit. The FAA removed that requirement for repetitive compression/soap inspection tests. We also considered these following alternatives:
(a) Do nothing—This option is not acceptable due to the number of failures of ECi cylinder head assemblies and the consequences of the failures.
(b) Periodic inspections only (no forced removals)—Though the NTSB recommended this option in its comments to the NPRM (August 12, 2013, 78 FR 48828), the service history has shown that such inspections may not reliably detect existing cracks and the rate of crack growth to separation is unknown and variable. The NTSB also submitted a later comment, in response to the August 28, 2015, SNPRM, that the revised rule as adopted in this final rule, meets the intent of its Safety Recommendations A-12-7.
(c) Forced removal with periodic inspections—Periodic inspections may not reliably detect cracks and even with removal the rate of crack growth to separation is unknown and variable. Forced removal is the only remaining option.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and
(4) Will have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective September 15, 2016.
None.
This AD applies to all Continental Motors, Inc. (CMI) model -520 and -550 reciprocating engines, and to all other CMI engine models approved for the use of model -520 and -550 cylinder assemblies such as the CMI model -470 when modified by supplemental type certificate (STC), with Continental Motors Inc., San Antonio (formerly Airmotive Engineering Corp.), replacement parts manufacturer approval (PMA) cylinder assemblies, marketed by Engine Components International Division (hereinafter referred to as ECi), part number (P/N) AEC 631397, with ECi Class 71 or Class 76, serial number (S/N) 1 through S/N 61176, installed.
This AD was prompted by multiple failure reports of cylinder head-to-barrel separations and cracked and leaking aluminum cylinder heads. We are issuing this AD to prevent failure of the cylinder assemblies, which could lead to failure of the engine, in-flight shutdown, and loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Review the engine maintenance records to determine if any affected cylinder assemblies are installed.
(2) If you cannot determine based on review of engine maintenance records if any affected cylinder assemblies are installed, comply with paragraph (e)(4) of this AD.
(3) If you do not have any of the affected ECi cylinder assemblies installed on your engine, no further action is required.
(4) Cylinder Identification and Serial Number Location
(i) Check the cylinder assembly P/N and Class number. The ECi cylinder assembly, P/N AEC 631397, Class 71 or Class 76, is stamped on the bottom flange of the cylinder barrel. Guidance on the P/N and Class number description and location can be found in ECi Service Instruction No. 99-8-1, Revision 9, dated February 23, 2009.
(ii) If you cannot see the cylinder assembly P/N when the cylinder assembly is installed on the engine, you may use the following alternative method of identification:
(A) Remove the cylinder assembly rocker box cover.
(B) Find the letters ECi, cast into the cylinder head between the valve stems.
(C) Check the cylinder head casting P/N. Affected cylinder assemblies have the cylinder head casting, P/N AEC 65385, cast into the cylinder head between the valve stems.
(D) Find the cylinder assembly S/N as specified in paragraphs (e)(4)(iii) or (e)(4)(iv) of this AD, as applicable.
(iii) For ECi cylinder assemblies, P/N AEC 631397, manufactured through 2008, find the cylinder assembly S/N stamped on the intake port boss two inches down from the top edge of the head.
(iv) For ECi cylinder assemblies, P/N AEC 631397, manufactured on or after January 1, 2009, find the cylinder assembly S/N stamped just below the top edge of the head on the exhaust port side.
(5) Removal From Service
(i) For any affected cylinder assembly with 680 or fewer operating hours time-in-service (TIS) since new on the effective date of this AD, remove the cylinder assembly from service before reaching 1,000 operating hours TIS since new.
(ii) For any affected cylinder assembly with more than 680 operating hours TIS since new and 1,000 or fewer operating hours TIS since new on the effective date of this AD, remove the cylinder assembly from service within the next 320 operating hours TIS or within 1,160 operating hours TIS since new, whichever occurs first.
(iii) For any affected cylinder assembly with more than 1,000 operating hours TIS since new on the effective date of this AD, remove the cylinder assembly from service within the next 160 operating hours or at next engine overhaul, whichever occurs first.
(iv) For any affected cylinder assembly that has been overhauled, remove the cylinder assembly from service within the next 80 operating hours TIS after the effective date of this AD.
After the effective date of this AD:
(1) Do not repair, or reinstall onto any engine, any cylinder assembly removed per this AD.
(2) Do not install any affected ECi cylinder assembly that has been overhauled, into any engine.
(3) Do not install any engine that has one or more affected overhauled ECi cylinder assemblies, onto any aircraft.
(4) Do not return to service any aircraft that has an engine installed with an ECi cylinder assembly subject to this AD, if the cylinder assembly has 1,000 or more operating hours TIS.
The Manager, Delegation Systems Certification Office or Fort Worth Aircraft Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
(1) For more information about this AD, contact Jurgen E. Priester, Aerospace Engineer, Delegation Systems Certification Office, FAA, Rotorcraft Directorate, 10101 Hillwood Parkway, Fort Worth, TX 76177; phone: 817-222-5190; fax: 817-222-5785; email:
(2) For ECi Service Instruction No. 99-8-1, Revision 9, dated February 23, 2009, which is not incorporated by reference in this AD, contact Continental Motors—San Antonio, 9503 Middlex Drive, San Antonio, TX 78217; phone: 210-820-8101; Internet:
(3) You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace in Park River, ND. Controlled airspace is necessary to accommodate new Standard Instrument Approach Procedures developed at Park River-W C Skjerven Field, Park River, ND, for the safety and management of Instrument Flight Rules (IFR) operations at the airport. Additionally, to correct airport name to correspond with the NASR in the header and legal description.
Effective 0901 UTC, November 10, 2016. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Rebecca Shelby, Federal Aviation Administration, Operations Support
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Park River-W C Skjerven Field, Park River, ND.
On May 24, 2016, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface within a 7-mile radius of Park River-W C Skjerven Field, Park River, ND, to accommodate new standard instrument approach procedures. Controlled airspace is needed for the safety and management of IFR operations at the airport. Additionally, this corrects the airport name to coordinate with the NASR, previously listed in the NPRM header and legal description as Park River Airport-WC Skjerven Field to Park River-W C Skjerven Field.
Class E airspace areas are published in Section 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 7-mile radius of Park River-W C Skjerven Field.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies Class E airspace extending upward from 700 feet above the surface at Gratiot Community Airport, Alma, MI; Antrim County Airport, Bellaire, MI; Wexford County Airport, Cadillac, MI; Drummond Island Airport, Drummond Island, MI; Charles C. Zettel Memorial Airport, Gladwin, MI; Park Township Airport and West Michigan Regional Airport, Holland, MI; and Three Rivers Municipal Dr. Haines Airport, Three Rivers, MI. Decommissioning of non-directional radio beacons (NDB),
Effective 0901 UTC, November 10, 2016. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Gratiot Community Airport, Alma, MI; Antrim County Airport, Bellaire, MI; Wexford County Airport, Cadillac, MI; Drummond Island Airport, Drummond Island, MI; Charles C. Zettel Memorial Airport, Gladwin, MI; Park Township Airport and West Michigan Regional Airport, Holland, MI; and Three Rivers Municipal Dr. Haines Airport, Three Rivers, MI.
On May 3, 2016, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace extending upward from 700 feet above the surface at the following airports:
Within a 6.5-mile radius of Gratiot Community Airport, Alma, MI;
Within a 6.5-mile radius of Antrim County Airport, Bellaire, MI, with a segment extending from the 6.5-mile radius to 6.9 miles south of the airport;
Within a 6.7-mile radius of Wexford County Airport, Cadillac, MI;
Within a 6.5-mile radius of Drummond Island Airport, Drummond Island, MI, with a segment extending from the 6.5-mile radius to 8.5 miles east of the airport;
Within a 6.5-mile radius of Charles C. Zettel Memorial Airport, Gladwin, MI;
Within a 6.5-mile radius of West Michigan Regional Airport (formerly Tulip City Airport), Holland, MI; Park Township Airport is removed as it no longer has instrument procedures and no longer requires Class E airspace; and
Within a 6.4 mile radius of Three Rivers Municipal Dr. Haines Airport, Three Rivers, MI, and updates the geographic coordinates of this airport to coincide with the FAAs aeronautical database.
These airspace reconfigurations are necessary due to the decommissioning of NDBs, cancellation of NDB approaches, or implementation of RNAV procedures at the above airports. Controlled airspace is necessary for the safety and management of the standard instrument approach procedures for IFR operations at the airports.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Gratiot Community Airport, and within 2.0 miles either side of a 270° bearing from the airport extending from the 6.5-mile radius to 10.1 miles west of the airport, and within 1.5 miles either side of the Mount Pleasant VOR/DME 178° radial extending from the 6.5-mile radius to 10.3 miles north of the airport.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Antrim County Airport, and within 1.9 miles each side of the 197° bearing from the airport extending from the 6.5-mile radius to 6.9 miles south of the airport.
That airspace extending upward from 700 feet above the surface within a 6.7-mile radius of the Wexford County Airport.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Drummond Island Airport, and within 4 miles each side of the 072° bearing from the airport extending from the 6.5-mile radius to 8.5 miles east of the airport; that airspace extending upward from 1,200 feet above the surface bounded by long. 83° 57'00” W., on the west; long. 83° 26'00” W., on the east; lat. 46° 05'00” N., on the north; and lat. 45° 45'00” N., on the south, excluding that airspace within Canada.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the Charles C. Zettel Memorial Airport.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the West Michigan Regional Airport.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Three Rivers Municipal Dr Haines Airport, excluding that airspace within the Sturgis, Kirsch Municipal Airport, MI, Class E airspace area.
Food and Drug Administration, HHS.
Final rule; technical amendment.
The Food and Drug Administration (FDA) is amending its regulations to correct an error in the lists of statutory and regulatory provisions that provide an opportunity for an informal hearing so that the lists correctly reference the statutory and regulatory provisions that provide such an opportunity in connection with a ban of a device. This action is being taken to align the regulations with the Federal Food, Drug, and Cosmetic Act (the FD&C Act) and avoid any potential confusion the erroneous lists may cause.
This rule is effective August 11, 2016.
Ian Ostermiller, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5515, Silver Spring, MD 20993-0002, 301-796-5678.
FDA is correcting an error in the regulations that identify the statutory and regulatory provisions that provide an opportunity for a regulatory hearing, also known as an informal hearing (§ 16.1 (21 CFR 16.1)). In the list of statutory provisions at § 16.1(b)(1), the Agency is adding a reference to subsection (b) of section 516 of the FD&C Act (21 U.S.C. 360f), which provides for a reasonable opportunity for an informal hearing when FDA proposes a medical device ban with a special effective date (21 U.S.C. 360f(b)(2)). The list of statutory provisions does not currently specify subsection (b) of section 516 of the FD&C Act, and it incorrectly refers to 21 CFR 895.21(d). An opportunity for a hearing is not required under section 516 of the FD&C Act or part 895 (21 CFR part 895) for bans that do not have a special effective date.
Further, the list of regulatory provisions at § 16.1(b)(2) does not include any reference to part 895. We are correcting this by adding a reference to § 895.30(c), which provides for an opportunity for an informal hearing under 21 CFR part 16 when FDA proposes a medical device ban with a special effective date. These corrections will align § 16.1(b) with section 516 of the FD&C Act and part 895 to avoid confusion regarding when an opportunity for hearing is required for a device ban.
Prior to the Safe Medical Devices Act of 1990 (SMDA) (Pub. L. 101-629), the FD&C Act required the Secretary of Health and Human Services to afford an opportunity for informal hearings about any proposed rule to ban a medical device, regardless of effective date. One of the SMDA's provisions removed the requirement that FDA provide an opportunity for an informal hearing when FDA does not establish a special
On December 10, 1992 (57 FR 58400), FDA published a final rule implementing the SMDA. The final rule of 1992 amended § 895.21(d), which covers the procedures for issuing a ban without a special effective date, by removing the requirement that FDA provide an opportunity for an informal hearing when there is no special effective date.
FDA finds good cause for issuing this amendment to § 16.1(b)(1) as a final rule without notice and comment because this amendment corrects the regulations to restate the statute (5 U.S.C. 553(b)(B)). “[W]hen regulations merely restate the statute they implement, notice-and-comment procedures are unnecessary.”
In addition, FDA finds good cause for this amendment to become effective on the date of publication of this action. The APA allows an effective date less than 30 days after publication as “provided by the agency for good cause found and published with the rule” (5 U.S.C. 553(d)(3)). A delayed effective date is unnecessary in this case because the amendment to § 16.1 does not impose any new regulatory requirements on affected parties. As a result, affected parties do not need time to prepare before the rule takes effect. Therefore, FDA finds good cause for this correction to become effective on the date of publication of this action.
Administrative practice and procedure.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 16 is amended as follows:
15 U.S.C. 1451-1461; 21 U.S.C. 141-149, 321-394, 467f, 679, 821, 1034; 28 U.S.C. 2112; 42 U.S.C. 201-262, 263b, 364.
Food and Drug Administration, HHS.
Final rule; correcting amendments.
The Food and Drug Administration (FDA, the Agency, or we) is making technical corrections to its regulations for hearing procedures for denial of approval or withdrawal of approval of new animal drug applications. The Agency is taking this action to harmonize terminology and to improve the organization and clarity of the regulations.
This rule is effective August 11, 2016.
For access to the docket to read background documents or comments received, go to
Vernon Toelle, Center for Veterinary Medicine (HFV-234), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-5637,
This regulation is intended to make technical amendments to § 514.200 (21 CFR 514.200) to harmonize the terminology with part 12 (21 CFR part 12), as well as to update § 514.200 in accordance with plain language principles to make it easier for the public to understand and follow.
When the Agency issued procedural regulations for formal evidentiary public hearings, originally published in part 2 (21 CFR part 2) and later redesignated to part 12,
Consequently, when part 12 was finalized, we revised the regulations specific to new animal drugs. These revisions included revoking certain provisions and revising 21 CFR 514.201 to state that hearings related to new animal drugs under section 512(d) and (e) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360b(d) and (e)) shall be governed by part 12 of this chapter. However, when we made these revisions to part 514, we neglected to update § 514.200 to match the terminology used in part 12.
Therefore, we are now revising § 514.200 to make its language and terminology consistent with the language and terminology of the procedural regulations for hearings in part 12. Specifically, we are changing the references to “administrative law judge” in current § 514.200 to the term “presiding officer”, which is defined in 21 CFR 10.3
Since we are revising § 514.200 to harmonize the language and terminology with part 12, we are also taking this opportunity to update the language of § 514.200 in accordance with the Plain Writing Act of 2010 (Pub. L. 111-274) and Executive Order 13563. The Plain Writing Act of 2010 requires that all Federal agencies use “clear government communication that the public can understand and use.” Executive Order 13563 mandates that all regulations be “accessible, consistent, written in plain language, and easy to understand.” Therefore, we are eliminating gender-specific pronouns, passive voice, complicated sentence structure, and archaic language, and updating the language to make it more reader-friendly and accessible. We anticipate that these changes will make § 514.200 clearer and easier to read. Additionally, we are updating the title of that section from “Contents of notice of opportunity for a hearing” to “Notice of opportunity for hearing; notice of participation and requests for hearing; grant or denial of hearing” because the latter title more accurately describes the type of information found in § 514.200. The latter title also harmonizes with an analogous section for new drug applications in 21 CFR 314.200.
All of these corrections are nonsubstantive, technical amendments designed to harmonize the language and terminology of § 514.200 with the governing regulation on formal evidentiary public hearings in part 12 and to make the language of § 514.200 easier for the public to understand and follow. We are taking this action as a part of our Retrospective Review Initiative
FDA is issuing these regulations under section 512(e) of the FD&C Act. This section gives the Secretary of Health and Human Services the authority to grant approval, deny approval, or withdraw approval of new animal drug applications. In addition, section 701(a) of the FD&C Act (21 U.S.C. 371(a)) gives FDA general rulemaking authority to issue regulations for the efficient enforcement of the FD&C Act.
Section 6 of Executive Order 13563 states that FDA is under a continuing obligation to review its existing regulations periodically to determine whether any such regulations should be modified, streamlined, expanded, or repealed to improve regulatory effectiveness and reduce public burden. The Plain Writing Act of 2010 mandates that all regulations be written in clear language that is easy for the public to understand and use.
This rule makes technical amendments to § 514.200 to harmonize the language and terminology with the governing regulation on administrative hearings in part 12 and to update the language in accordance with the Plain Writing Act of 2010 and Executive Order 13563. Publication of this document constitutes final action on these changes under the Agency's original intent with respect to the hearing provisions for new animal drug applications. Therefore, for good cause, FDA finds under 5 U.S.C. 553(b)(3)(B) and (d)(3) that notice and public comment are unnecessary.
These regulations are effective upon publication.
We have examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). We have developed a comprehensive Economic Analysis of Impacts that assesses the impacts of the final rule. We believe that this final rule is not a significant
The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this rule is making only technical amendments, we certify that the final rule will not have a significant economic impact on a substantial number of small entities.
The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before issuing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $146 million, using the most current (2015) Implicit Price Deflator for the Gross Domestic Product. This final rule would not result in an expenditure in any year that meets or exceeds this amount.
We have determined under 21 CFR 25.31(i) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final rule contains no collection of information. Therefore, FDA is not required to seek clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
We have analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, we conclude that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.
Administrative practice and procedure, Animal drugs, Confidential business information, Reporting and recordkeeping requirements.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 514 is amended as follows:
21 U.S.C. 321, 331, 351, 352, 354, 356a, 360b, 371, 379e, 381.
(a) The notice to the applicant of opportunity for a hearing on a proposal by the Commissioner to refuse to approve an application or to withdraw the approval of an application will be published in the
(b) If the applicant fails to request a hearing within the 30-day timeframe, the Commissioner, without further notice, will publish a final order denying or withdrawing approval of the application.
(c) If the applicant desires to request a hearing:
(1) Within 30 days after publication of the notice of opportunity for hearing, the applicant must submit to the Division of Dockets Management written objections and a request for a hearing in accordance with §§ 12.20 and 12.22. This request for a hearing must include each specific objection to the proposal on which a hearing is requested, together with a detailed description and analysis of the factual information (including all relevant clinical and other investigational data) the applicant will present in support of that objection. A request for a hearing may not rest upon mere allegations or denials or general descriptions of positions or contentions, but must set forth specific reliable evidence showing there is a genuine and substantial issue of fact that requires a hearing.
(2) If the Commissioner determines upon review of the data and information submitted in the objections and request for a hearing that a hearing is not justified because no genuine and substantial issue of fact precludes the refusal to approve the application or the withdrawal of approval of the application (for example, the applicant has not identified any adequate and well-controlled clinical investigations to support the claims of effectiveness), the Commissioner will enter an order denying the hearing and stating the final findings and conclusions.
(3) If the Commissioner determines upon review of the data and information submitted in the objections and request for a hearing that a hearing is justified, the Commissioner will publish a notice setting forth the following:
(i) The regulation or order that is the subject of the hearing;
(ii) A statement specifying any part of the regulation or order that has been stayed by operation of law or in the Commissioner's discretion;
(iii) The parties to the hearing;
(iv) The specific issues of fact for resolution at the hearing;
(v) The presiding officer, or a statement that the presiding officer will be designated in a later notice; and
(vi) The date, time, and place of the prehearing conference, or a statement that the date, time, and place will be announced in a later notice. However, in the case of a denial of approval, the hearing must not occur more than 90 days after expiration of the 30-day time period in which to request a hearing, unless the presiding officer and the applicant otherwise agree; and in the case of withdrawal of approval, the hearing will occur as soon as practicable.
(d) The hearing will be open to the public; however, if the Commissioner finds that portions of the application which serve as a basis for the hearing contain information concerning a method or process entitled to protection as a trade secret, the part of the hearing involving such portions will not be public, unless the respondent so specifies in the request for a hearing.
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Final rule.
This final rule revises HUD's property disposition regulations. Specifically, this rule consolidates and reorganizes these regulations to better reflect industry standards, and allow HUD to conduct its Single Family Property Disposition Program more efficiently and effectively so that HUD can obtain the greatest value for its real estate-owned (REO) properties in different market conditions. This final rule follows publication of the October 2, 2015, proposed rule and, after considering public comments submitted in response to the proposed rule, adopts the proposed rule with minor change.
Thomas Kumi, Director, Single Family Asset Management and Disposition Division, Office of Single Family Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 9172, Washington, DC 20410-8000, telephone number 202-708-1672 (this is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).
Section 204(g) of the National Housing Act (12 U.S.C. 1710g) addresses the management and disposition of HUD-acquired single-family properties, which includes HUD-acquired real and personal property assets. HUD's implementing regulations are codified in 24 CFR part 291. Under this statutory and regulatory authority, HUD is charged with carrying out a program of sales of HUD-acquired and owned properties, along with appropriate credit terms and standards to be used in carrying out the program. Property owned by HUD as a result of acquisition includes REO properties. The goals of HUD's Single Family Property Disposition Program are to reduce the inventory of single-family properties in a manner that minimizes losses to the Mutual Mortgage Insurance Fund (MMIF); promote the expansion of homeownership opportunities for American families by, among other things, selling such properties at a discount to State and local governments and HUD-approved nonprofit entities; and help stabilize distressed communities.
Following the economic and housing crises that began in 2008, the Federal Housing Administration (FHA) determined that it needed to revise, consolidate, and reorganize its property disposition regulations so that they better reflect industry standards, provide greater efficiency in the administration of HUD's property disposition program, and, ultimately, provide HUD the ability to obtain the greatest value for its REO properties in different market conditions. As a result, on October 2, 2015 (80 FR 59690), HUD published a rule that proposed certain changes to part 291. Specifically, HUD proposed the following changes:
1.
2.
3.
4.
5.
6.
7.
This final rule follows publication of the October 2, 2015, proposed rule and takes into consideration the public comments received on the proposed rule. The public comment period on the proposed rule closed on December 1, 2015, and HUD received six comments. The commenters were from a retail home mortgage lender, an organization of professional real property appraisers, an organization that provides appraisals, and members of the public. This section of this preamble presents a summary of the public comments received on the proposed rule, and HUD's responses to the comments. After considering these comments, HUD has decided to adopt the final rule as final with no substantive changes.
If a property is not sold to a third party at the foreclosure sale, the lender obtains title. Once the lender ascertains that it has marketable title and the property is in conveyance condition, the lender files a claim for insurance benefits and the deed is recorded in HUD's name. HUD's current conveyance model provides HUD with reasonable assurance that there are no encumbrances to a conveyed property that will prevent HUD from efficiently and effectively maintaining and marketing an REO property until it is sold.
BPOs, CMAs, and AVMs are widely used by various market participants. HUD believes that when two or more of these valuation tools are within a relevant range, the values are generally regarded as reliable.
Currently, HUD orders an appraisal as a valuation tool in determining the list price of its REO properties. The appraisal is not always the sole basis of determining the list price. The rule provides HUD with the flexibility of using one or more other valuation tools to establish the list price on its REO single-family properties. Since, the competitive market ultimately determines the sales price for HUD REO properties, in markets where the AVM, BPO, etc., values have historically been within a relevant range of appraisal values, HUD may determine that it is not cost beneficial for HUD to order appraisals for purposes of establishing the list prices.
Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and therefore subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.
The majority of the changes made by this final rule streamline HUD's property disposition program by bringing its practices into conformance with industry standards and allowing HUD to administer its Single Family Property Disposition Program more efficiently and more effectively. These changes do not create additional significant burdens for the public. As a result, this rule was determined to not be a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and therefore was not reviewed by OMB.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This rule final rule codifies changes to the administration of HUD's property disposition and acquisition activities carried out as part of the FHA insurance program for one-to-four family homes. These changes include limiting the provision of settlement cost assistance to owner-occupants, providing HUD flexibility to run the bidding process for REO properties, changes to the direct sales process, additional flexibility to list properties electronically, changes to the required escrow amount for purchasers obtaining property not meeting HUD's property standards, and clarifications in the rule governing HUD's appraisal process. These changes streamline HUD's administration of its Single Family Property Disposition Program and reflect industry practice. For these reasons, HUD has determined that this final rule does not have a significant economic impact on a substantial number of small entities.
The information collection requirements contained in this final rule have been approved by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB control number 2502-0306. In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.
A Finding of No Significant Impact (FONSI) with respect to environment has been made at the proposed rule stage in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of National Environmental Policy Act (42 U.S.C. 4332(2)(C)). The FONSI remains applicable to this final rule and is available for public inspection between the hours of 8 a.m. and 5 p.m., weekdays, in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410. Due to security
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either (i) imposes substantial direct compliance costs on State and local governments and is not required by statute or (ii) preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This final rule does not have federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments, and on the private sector. This final rule does not impose any Federal mandates on any State, local, or tribal governments, or on the private sector, within the meaning of the UMRA.
Community facilities, Conflict of interests, Homeless, Lead poisoning, Low and moderate income housing, Mortgages, Reporting and recordkeeping requirements, Surplus government property.
Accordingly, for the reasons stated in the preamble above, HUD amends 24 CFR part 291 as follows:
12 U.S.C. 1701
(a) * * *
(1) This part governs the acquisition, possession, and disposition of one-to-four family properties acquired by the Federal Housing Administration (FHA) through foreclosure of an insured or Secretary-held mortgage or loan under the National Housing Act, or acquired by HUD under section 204(g) of the National Housing Act (12 U.S.C. 1710(g)). HUD will issue detailed policies and procedures that must be followed in specific areas.
Terms used in this part are defined as follows:
In accordance with section 204(g) of the National Housing Act (12 U.S.C. 1710(g)), HUD will prescribe the terms and conditions for all methods of sale. HUD may dispose of assets using any method that the Secretary deems appropriate, including, but not limited to the following:
(b)
(c)
(d)
(i)
(ii)
(B)
(iii)
(2) REO properties that have been identified as uninsurable in accordance with paragraph (c) of this section can be purchased and financed with a mortgage insured under section 203(k) of the National Housing Act (12 U.S.C. 1709(k)), subject to underwriting requirements supported by an FHA-specified appraisal and in accordance with 24 CFR 203.50.
(3) HUD, in its sole discretion and subject to appropriations, may take back Purchase Money Mortgages (PMMs) on property purchased by governmental entities or private nonprofit organizations who buy property for ultimate resale to owner-occupant purchasers with incomes at or below 115 percent of the area median income.
(i) For purposes of this section, the term “purchase money mortgage,” or PMM means a note secured by a mortgage or trust deed given by a buyer, as mortgagor, to the seller, as mortgagee, as part of the purchase price of the real estate.
(ii) Except as provided in paragraph (d)(3) of this section, the purchaser is entirely responsible for obtaining financing for purchasing a property.
(h) Any real estate broker who has agreed to comply with HUD requirements may be eligible to participate in the sales program. Purchasers participating in the competitive sales program, except government entities and nonprofit organizations, must submit bids through a participating broker. In accordance with section 204(g) of the National Housing Act (12 U.S.C. 1710(g)), HUD will prescribe the terms and conditions for all methods of listing properties. HUD may dispose of properties using any method that the Secretary deems appropriate, including, but not limited to the following:
(1)
(2)
(ii) In areas where a broker has an exclusive right to list properties, a purchaser may use a broker of his or her choice. The purchaser's broker must submit the bid through HUD's designated electronic bid system.
When HUD conducts competitive sales of individual properties to individual buyers, it will generally sell the properties on an “as-is” basis, without repairs or warranties, and it will follow the sales procedures provided in this section.
(b)
(2) If an owner-occupant purchaser of the property requests in the bid, HUD may pay all or a portion of the financing and loan closing costs, not to exceed the percentage of the purchase price determined appropriate by the Secretary for the area. In no event will the total amount for broker's sales commission exceed 6 percent of the purchase price, except for cash bonuses offered to brokers by HUD for the sale of hard-to-sell properties. No assistance for financing and loan closing costs or for the broker's sales commission will be provided to investor purchasers.
(k) * * *
(1) The Secretary will make all winning bids available publicly.
(2) Successful bidders will be notified through their real estate brokers by electronic mail, mail, telephone, or other means. Acceptance of a bid is final and effective only upon HUD's execution of the sales contract, signed by both the submitting real estate broker and the prospective purchaser, and sending a copy of the executed contract by electronic mail to the successful bidder or the bidder's agent.
(l)
This subpart describes the policies and procedures governing the Good Neighbor Next Door (GNND) Sales Program. The purpose of the GNND Sales Program is to improve the quality of life in distressed urban communities. This is to be accomplished by encouraging law enforcement officers, teachers, and firefighters/emergency medical technicians to purchase and live in homes that are located in the same communities where they perform their daily responsibilities and duties.
For purposes of this subpart:
(c) The full-time employment in paragraph (a) of this section must, in the normal course of business, directly serve the locality in which the home is located.
(b) The full-time employment in paragraph (a) of this section must, in the normal course of business, serve students from the locality where the home is located.
A person qualifies as a firefighter/emergency medical technician for the purposes of the GNND Sales Program if the person is:
(a) Employed full-time as a firefighter or emergency medical technician by a fire department or emergency medical services responder unit of the Federal Government, a State, unit of general local government, or an Indian tribal government; and
(b) The full-time employment in paragraph (a) of this section must, in the normal course of business, directly serve the locality where the home is located.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters of the Allegheny River mile 0.0-0.25, Ohio River mile 0.0-0.1, Monongahela River mile 0.0-0.1. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created from a barge-based fireworks display. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Pittsburgh.
This rule is effective on August 12, 2016 from 9:30 p.m. until 11:30 p.m.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email MST1 Jennifer Haggins, Marine Safety Unit Pittsburgh, U.S. Coast Guard, at telephone 412-221-0807, email
This safety zone and fireworks displays are included in the list of annually recurring safety zones published in 33 CFR 165.801, Table 1, No. 59 as occurring on Sunday, Monday, or Thursday from September through January each year following Pittsburgh Steelers home games. For this year, the event sponsor is conducting an additional barge-based fireworks display on August 12, 2016 and that display and required safety zone location are not included in the published regulations. This temporary final rule establishes that safety zone.
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM with respect to this rule because the Coast Guard received notice on July 25, 2016 that this additional fireworks display would take place. After receiving and fully reviewing the event information, circumstances, and exact location, the Coast Guard determined that a safety zone is necessary to protect personnel, vessels, and the marine environment from potential hazards created from a barge-based fireworks display on the navigable waterway. It would be impracticable to complete the full NPRM process for this safety zone because it needs to be established by August 12, 2016. The fireworks display has been advertised and the local community has prepared for the event.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Pittsburgh (COTP) has determined that a safety zone is needed on August 12, 2016.This rule is needed to protect personnel, vessels, and the marine environment from potential hazards created from a barge-based fireworks display.
This rule establishes a safety zone on August 12, 2016 from 9:30 p.m. until 11:30 p.m. The safety zone will cover all navigable waters on the Allegheny River mile 0.0-0.25, Ohio River mile 0.0-0.1, Monongahela River mile 0.0-0.1. The duration of the safety zone is intended to protect personnel, vessels, and the marine environment from potential hazards created from a barge-based firework display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
This regulatory action determination is based on the size, location, and duration of the safety zone. This safety zone impacts a small portion of the waterway for a limited duration of less than two hours in the evening. Vessel traffic will be informed about the safety zone through local notices to mariners. Moreover, the Coast Guard will issue broadcast notices to mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to transit the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less then two hours that will prohibit entry to the Allegheny River mile 0.0-0.25, Ohio River mile 0.0-0.1, Monongahela River mile 0.0-0.1during the barge-based firework event. It is categorically excluded from further review under paragraph 34 (g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Persons or vessels requiring entry into or passage through the zone must request permission from the COTP or a designated representative. The COTP representative may be contacted at 412-221-0807.
(3) All persons and vessels shall comply with the instructions of the COTP or their designated representative. Designated COTP representatives include United States Coast Guard commissioned, warrant, and petty officers.
(d)
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to make a technical correction to an equation in an appendix in the National Ambient Air Quality Standards (NAAQS) for Particle Pollution. Equation 2 describes an intermediate step in the calculation of the design value for the annual PM
This rule is effective on October 11, 2016 without further notice, unless the EPA receives adverse comment by September 12, 2016. If the EPA receives adverse comment, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2016-0408, to the
For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit
Mr. Brett Gantt, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Air Quality Analysis Group (Mail Code: C304-04), Research Triangle Park, NC 27711; telephone number: (919) 541-5274; fax number: (919) 541-3613; email address:
The EPA is publishing this rule without a prior proposed rule because we view this as a non-controversial action and anticipate no adverse comment. This action corrects a scrivener's error in an intermediate equation in the calculation of the annual PM
If EPA receives adverse comment, we will publish a timely withdrawal in the
This action applies to you if you are calculating the annual PM
(1)
(2)
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a CFR part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
On December 14, 2012, the EPA revised the NAAQS for Particle Pollution (78 FR 3086). Appendix N to part 50 of this document described the data handling conventions and computations necessary for determining when the NAAQS for PM
Specifically, the minimum quarterly value substitution test described in section 4.1(c)(i) allows for a valid annual PM
As currently written, equation 2 is not appropriate for use during a minimum quarterly value substitution test and does not accurately reflect the intended calculation of the annual mean PM
A.
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA. This action generalizes the calculation of the annual PM
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action corrects the calculation of annual mean PM
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. This 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. This regulatory action is a technical correction to a previously promulgated regulatory action and does not have any impact on human health or the environment. 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 is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This regulatory action is a technical correction to a previously promulgated regulatory action and does not have any impact on human health or the environment.
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).
Air pollution control, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
4.4
(b) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the West Virginia Department of Environmental Protection (WVDEP) for the State of West Virginia on June 3, 2015. This revision pertains to West Virginia's Prevention of Significant Deterioration (PSD) permit program regulations for preconstruction permitting requirements for major sources. The revision includes a change in West Virginia's PSD regulations related to emissions of fine particulate matter (PM
This final rule is effective on September 12, 2016.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2015-0539. All documents in the docket are listed in the
Mr. Paul Wentworth, (215) 814-2183, or by email at
On January 11, 2016 (81 FR 1133), EPA published a notice of proposed rulemaking (NPR) for the State of West Virginia. In the NPR, EPA proposed approval of a revision to West Virginia's PSD permit program regulations for preconstruction permitting requirements for major sources. The revision includes revised West Virginia PSD regulations related to emissions of PM
The SIP revision submitted by WVDEP on June 3, 2015 pertains to revisions to its PSD permit program regulations at 45CSR14-16.7.c that establish a significant monitoring concentration (SMC) value of zero micrograms per cubic meter for PM
With its submittal, West Virginia has made all of the changes to its PSD implementing regulations necessary to address PM
EPA is approving this SIP revision submitted by WVDEP as a revision to the West Virginia SIP for its PSD program and removing a prior conditional approval on the PSD program. In this action, EPA is also approving several of West Virginia's infrastructure SIP revisions as meeting the PSD elements of section 110(a)(2) of the CAA for the 1997 ozone and PM
In this rule the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of 45CSR14-16.7.c, described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 11, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action which revises West Virginia's PSD regulations related to emissions of PM
Environmental protection, Air pollution control, Incorporation by reference, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revised text reads as follows:
(c) * * *
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of aminocyclopyrachlor in or on milk and livestock commodities imported into the United States, which are identified and discussed later in this document. E.I. du Pont de Nemours and Company requested these tolerances under the
This regulation is effective August 11, 2016. Objections and requests for hearings must be received on or before October 11, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2011-0144, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0144 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 11, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0144, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
After issuance of the notice of filing, the registrant revised the petition by rescinding the proposed grass commodities and amending the purpose of establishing tolerances from domestic to import use (
Based upon review of the data supporting the petition, EPA has lowered the proposed tolerances for milk, meat (of cattle, goat, horse, and sheep), and fat (of cattle, goat, horse, and sheep) and changed the proposed tolerances from liver and meat byproducts, except liver (of cattle, goat, horse, and sheep) to meat byproducts (of cattle, goat, horse, and sheep). The reasons for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for aminocyclopyrachlor including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with aminocyclopyrachlor follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Aminocyclopyrachlor (parent acid) has low acute toxicity by all routes of exposure (oral, dermal, inhalation), does not cause skin irritation or skin sensitization, but causes mild eye irritation. There are no target organs of toxicity for aminocyclopyrachlor. In the subchronic oral toxicity studies in rats, mild systemic toxicity effects of decreased body weights, body weight gains, food consumption, and food efficiency in both sexes were observed with repeated exposures at very high (limit) doses. There was no appreciable increase in the severity of these effects with time. The most sensitive species is the rat. Subchronic and chronic dietary studies in dogs and mice showed no adverse effects at all treatment doses including the limit dose. The subchronic dermal toxicity study in rat showed no evidence of toxicity at the limit dose. Subchronic inhalation toxicity studies are not available; however, based on the results of the acute inhalation studies showing low toxicity at twice the limit concentration, the likelihood of subchronic toxicity via inhalation route is expected to be low.
In the prenatal developmental toxicity study, there were no adverse effects of aminocyclopyrachlor on prenatal development or maternal health in rats at all treatment doses including the limit dose. In the rabbit study, administration at the limit dose resulted in one treatment-related death and two abortions which were considered secondary effects to maternal weight losses which occurred over a period of 5 to 7 days. No developmental effects were observed in the offspring. There were no adverse effects of aminocyclopyrachlor on reproduction and fertility in rats at the limit dose. Toxicity in parental rats and offspring was limited to decreases in body weights at the limit dose.
Aminocyclopyrachlor is classified as “Not Likely to be Carcinogenic to Humans.” This classification is based on no treatment-related tumors seen in male or female rats or mice at doses that were adequate to assess carcinogenicity, and no evidence of mutagenicity from a full battery of
The toxicity database for aminocyclopyrachlor-methyl (ester) via the oral route of exposure is bridged with aminocyclopyrachlor (parent acid) based on evidence from metabolism studies, acute toxicity studies, and repeat-dose toxicity studies with common endpoints. The rat metabolism studies showed that aminocyclopyrachlor-methyl rapidly metabolizes (within 30 minutes) to aminocyclopyrachlor. A full suite of acute toxicity studies conducted with aminocyclopyrachlor and aminocyclopyrachlor-methyl resulted in the same toxicity category classifications. The subchronic oral toxicity study and the modified one-generation reproduction toxicity study in rats conducted with aminocyclopyrachlor-methyl showed effects of decreased body weights and body weight gains at the limit dose similar to those observed in the aminocyclopyrachlor studies. This one-generation reproduction study showed no evidence of reproductive, developmental, or neurotoxicity at the limit dose. There was no evidence of mutagenicity in the
Cyclopropane carboxylic acid (CPCA), also known as IN-V0977, is an environmental photolytic degradate of aminocyclopyrachlor present only in surface water. CPCA has a different mode of toxic action than aminocyclopyrachlor and aminocyclopyrachlor-methyl. Based on extensive pre-clinical studies of the anxiolytic drug candidate panadiplon, which metabolizes to CPCA after oral administration, the target organ is the liver, causing impairment of mitochondrial function by inhibiting the beta oxidation of fatty acids, resulting in microvesicular steatosis (accumulation of small fat droplets in cells) that is often accompanied by liver necrosis and inflammation, decreased hepatic glycogen, and decreased blood glucose levels. These effects were observed with acute (1 to 3 days) and repeated (up to 14 days) exposures. The most sensitive species is the rabbit. Hepatic microvesicular steatosis in the rabbit follows a different dose-response than body-weight decreases observed with aminocyclopyrachlor and aminocyclopyrachlor-methyl in rats, with a 100-fold lower adverse-effect level.
There are no chronic dietary toxicity studies available to assess the carcinogenic potential of CPCA. However, structural-activity relationship (SAR) analyses on CPCA and panadiplon indicated no structural alerts for genotoxicity or carcinogenicity. Also, there were no reports of tumorigenic responses to CPCA or panadiplon in the open scientific literature.
Specific information on the studies received and the nature of the adverse effects caused by aminocyclopyrachlor, aminocyclopyrachlor-methyl, and cyclopropane carboxylic acid, as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there
Summaries of the toxicological endpoints for aminocyclopyrachlor and cyclopropane carboxylic acid used for human health risk assessment are shown in Tables 1 and 2 of this unit.
1.
i.
ii.
iii.
iv.
2.
The importation of milk and livestock commodities containing potential residues of aminocyclopyrachlor will not increase pesticide exposure in U.S. drinking water. Therefore, the drinking water estimates are based on pesticide exposure from the existing non-food/non-feed uses of aminocyclopyrachlor.
Based on the First Index Reservoir Screening Tool (FIRST) and Pesticide Root Zone Model Ground Water (PRZM-GW) models, the estimated drinking water concentrations (EDWCs) of aminocyclopyrachlor for chronic exposures for non-cancer assessments are estimated to be 18.3 parts per billion (ppb) for surface water, and 78.0 ppb for ground water. The EDWCs of CPCA from surface water are estimated to be 1.7 ppb for acute exposure, and 1.2 ppb for chronic exposures for non-cancer assessments. Ground water EDWCs for CPCA were not calculated since CPCA is a photodegradate of aminocyclopyrachlor and is not anticipated to be present in ground water due to the absence of sunlight.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment to aminocyclopyrachlor, the water concentration value of 78.0 ppb was used to assess the contribution to drinking water. For acute dietary risk assessment to CPCA, the water concentration value of 1.7 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment to CPCA, the water concentration value of 1.2 ppb was used to assess the contribution to drinking water.
3.
4.
EPA has not found aminocyclopyrachlor to share a common mechanism of toxicity with any other substances, and aminocyclopyrachlor does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that aminocyclopyrachlor does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
2.
For CPCA, there were no information available investigating developmental or offspring effects. However, there is indirect evidence in the open literature that the young may be more sensitive to the metabolic effects of CPCA, and this evidence does not allow this potential sensitivity to be ruled out. This evidence is provided by inherited conditions, specifically inborn errors of metabolism that results in compromised metabolism of fatty acids that is qualitatively similar to that of CPCA's effect of inhibition of beta oxidation of fatty acids. These inborn metabolism errors result in energy deficiencies during periods of fasting, and it is known that developing/young children are more sensitive to these effects than pregnant women or adults. The magnitude of this effect would be much more severe in the inherited case than for CPCA. This is because fatty acid oxidation is almost completely compromised in the inherited case and other cellular processes are also impacted, whereas only beta oxidation of fatty acids would be impacted for CPCA, and the magnitude of this impact is anticipated to be negligible for the estimated (low-level) dietary exposures.
3.
For the degradate cyclopropane carboxylic acid, the FQPA SF is retained at 10X for acute dietary exposures, to account for the extrapolation of data from a LOAEL to a NOAEL for hepatic steatosis/necrosis in rabbits, and to account for any potential uncertainties regarding developmental toxicity effects based on the available data. This SF is considered protective because hepatic steatosis/necrosis and any developmental toxicity effects would be caused by the same cellular mechanism. Therefore, protecting for these liver effects would protect any potential developmental toxicity resulting from very low dietary exposures to CPCA.
For chronic dietary exposures, the FQPA SF is increased from 10X to 30X to account for the use of a short-term (acute) study to assess long-term (chronic) exposure. The additional 3X SF is considered protective since the
Those decisions are based on the following findings:
i. The toxicity database for aminocyclopyrachlor is adequate for assessing the sensitivity of infants and children under FQPA and for selecting endpoints for risk assessment.
The database for CPCA is also adequate, as there is a substantial amount of toxicological information available in the open literature that identifies the target organ of toxicity, the mechanism of toxicity, and the most sensitive species. The FQPA SFs account for any residual uncertainties in the toxicity database for CPCA.
ii. There is no indication that aminocyclopyrachlor is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity. Based on the mechanism of toxicity for CPCA that has been identified in the open scientific literature, the nervous system is not expected to be more sensitive than the liver. Although there are no studies available that directly investigate the effects of CPCA on the nervous system, there is indirect evidence that the endpoint on which the Agency is regulating CPCA (hepatic steatosis/necrosis) is protective of the nervous system. First, the molecular mechanism underlying hepatic steatosis has been identified as inhibition of the metabolic pathway of beta oxidation of fatty acids in the mitochondria. This is a major, energy producing pathway in liver but not in the brain. Since the ketone bodies generated by this process in the liver are metabolized by the brain for energy, any brain effects from inhibition of this pathway would be secondary to liver effects. Second, CPCA is a metabolite of panadiplon, a drug that was developed to target the nervous system as an anxiolytic. Panadiplon failed in preclinical development not as a result of neurotoxicity, but as a result of liver toxicity that was caused by CPCA. This further supports that adverse effects on the liver is more sensitive than the brain. Since the endpoint chosen for risk assessment is protective for liver effects, it is therefore also protective for any primary or secondary neurotoxicity that may result from CPCA exposure.
iii. There is no evidence that aminocyclopyrachlor results in increased susceptibility in
As discussed in Unit III.D.2., there is no information available that directly investigates the developmental effects of CPCA. However, based on the known information, the magnitude of the potential impact of CPCA exposure on the inhibition of beta oxidation of fatty acids is anticipated to be negligible for the estimated dietary exposure, and less than the non-CPCA-related effects resulting from inborn metabolic errors which compromises the metabolism of fatty acids and other cellular processes.
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to aminocyclopyrachlor and CPCA in drinking water. These assessments will not underestimate the exposure and risks posed by aminocyclopyrachlor and CPCA.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
For CPCA, using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from drinking water only will occupy 11% of the aPAD for all infants less than 1 year old, the population group receiving the greatest exposure.
2.
3.
Short- and intermediate-term adverse effects were identified; however, aminocyclopyrachlor is no longer registered for any use patterns that would result in residential exposure. Short- and intermediate-term risks are assessed based on short-term/intermediate-term residential exposure plus chronic dietary exposure. Because there is no residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short-/intermediate-term risk), no further assessment of short- and intermediate-term risks are necessary, and EPA relies on the chronic dietary risk assessments for evaluating short- and intermediate-term risks for aminocyclopyrachlor and CPCA.
4.
5.
Adequate enforcement methodology ([DuPont-27162, Revision No. 1; high-performance liquid chromatography with tandem mass spectrometry detection (HPLC/MS/MS)) is available to enforce the tolerance expression.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). Codex is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established any MRLs for aminocyclopyrachlor.
Based on the available residue chemistry data and EPA policy on livestock tolerances, the proposed tolerances for liver (0.06 ppm) and meat byproducts except liver (0.40 ppm) of cattle, goat, horse, and sheep are replaced by establishing tolerances for meat byproducts of cattle, goat, horse, and sheep at 0.30 ppm. Also, based on the residue data, EPA is lowering the proposed tolerances for fat of cattle, horse, goat, and sheep from 0.07 ppm to 0.05 ppm. Lastly, EPA is also lowering the proposed tolerances for milk from 0.035 ppm to 0.01 ppm, and meat of cattle, goat, horse, and sheep from 0.02 ppm to 0.01 ppm to harmonize with established Canadian MRLs.
Therefore, tolerances are established for residues of the herbicide aminocyclopyrachlor, 6-amino-5-chloro-2-cyclopropyl-4-pyrimidinecarboxylic acid, including its metabolites and degradates, in or on cattle, fat at 0.05 ppm; cattle, meat at 0.01 ppm; cattle, meat byproducts at 0.30 ppm; goat, fat at 0.05 ppm; goat, meat at 0.01 ppm; goat, meat byproducts at 0.30 ppm; horse, fat at 0.05 ppm; horse, meat at 0.01 ppm; horse, meat byproducts at 0.30 ppm; milk at 0.01 ppm; sheep, fat at 0.05 ppm; sheep, meat at 0.01 ppm; and sheep, meat byproducts at 0.30 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(b)
(c)
(d)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of halauxifen-methyl and its metabolite, XDE-729 acid, in or on multiple commodities which are identified and discussed later in this document. Dow AgroSciences LLC requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective August 11, 2016. Objections and requests for hearings must be received on or before October 11, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2012-0919, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2012-0919 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 11, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2012-0919, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA has determined that livestock commodity tolerances are not required for the proposed uses. In addition, the proposed “wheat, hay” tolerance level of 0.04 ppm will be set at a reduced tolerance level of 0.03 ppm. The reason for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for halauxifen-methyl and its acid metabolite, including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with halauxifen-methyl and its major metabolite, XDE-729 acid, follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
The toxicology database for halauxifen-methyl is considered adequate at this time. Following oral exposure and absorption, the liver is exposed pre-systemically to halauxifen-methyl, where it is hydrolyzed to its major metabolite, XDE-729 acid, before entering the systemic circulation. Therefore, systemic exposure to organs and tissues other than the liver is to XDE-729 acid, whereas the liver is also exposed to the parent prior to its metabolism. The guideline studies were conducted on XDE-729 acid and identified the kidney as the main target organ. Bridging studies on halauxifen-methyl identified the liver as the target organ, but the data could not bridge to the acid metabolite because liver toxicity from exposure to halauxifen-methyl occurred at lower doses than the kidney toxicity resulting from exposure to XDE-729 acid. In
There is no evidence of neurotoxicity or immunotoxicity for either compound. Inhalation studies (including the acute LD
There is no evidence of increased prenatal susceptibility to either compound in developmental toxicity studies in two species. No developmental toxicity was observed in the presence of maternal toxicity for rats exposed to halauxifen-methyl or rabbits exposed to XDE-729 acid. In rats exposed to XDE-729 acid, mild fetal effects (decreased body weight and delayed ossification of the thoracic centra) were observed in the presence of more significant maternal toxicity (moribund sacrifice due to excessively decreased body weight and food consumption, along with increased relative kidney weight). In rabbits exposed to halauxifen-methyl, the fetal effects (decreased body weight, increases in delayed ossification of the pubis) were observed in the presence of maternal liver histopathology and
Specific information on the studies received and the nature of the adverse effects caused by halauxifen-methyl and its metabolite, XDE-729 acid, as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for halauxifen-methyl used in the Agency's human health risk assessment is shown in Table 1(a) of this unit. No hazard from a single exposure was identified in the available database; therefore, no risk is expected from acute dietary exposure to halauxifen-methyl. For chronic dietary exposure, the rat 90-day oral study was selected. Although long-term oral toxicity studies are not available for halauxifen-methyl, a dose and an endpoint protective of long-term toxicity could be identified using the subchronic data together with the MOA data. The rat 90-day study NOAEL of 10.3 mg/kg/day was based on increased liver weight, hypertrophy and vacuolization consistent with fatty change at the LOAEL of 53.4 mg/kg/day. Liver effects at the LOAEL were of low severity but were considered treatment-related. A marked increase (1,500-fold above controls) in Cyp1a1 expression was also observed at the LOAEL. As previously noted, mechanistic studies on halauxifen-methyl identified activation of liver AhR as the MOA for liver toxicity, for which increased expression of Cyp1a1 in the liver is a biomarker for AhR activation, the MIE. In the absence of AhR activation, liver toxicity will not occur. Although there were no liver effects observed at the study NOAEL, a 52-fold increase in Cyp1a1 expression was observed. This increase is well below the increase that was associated which mild liver toxicity. Long-term effects on the liver from this lower level increase are not known in the absence of chronic data, but the lowest dose in the study, 3 mg/kg/day, showed essentially no Cyp1a1 activation. Cyp1a1 expression at 3 mg/kg/day was comparable to controls in both the 28- and 90-day studies (1.2- and 3.6-fold higher than controls, respectively), indicating that there is not expected to be significant activation of the AhR receptor at this dose level over time. Therefore, in order to be protective of potential adverse effects on the liver following long-term exposure, the point of departure (POD) of 3 mg/kg/day was selected, based on increased expression of liver Cyp1a1 (52-fold) at 10 mg/kg/day. The selected dose and endpoint are considered conservative, since the dose is below the study NOAEL, but protective of residual uncertainty due to the lack of chronic data because liver toxicity may not occur in the absence of the MIE, regardless of exposure duration. They are also protective of chronic effects from XDE-729 acid, which are observed at higher doses. A UF of 100 is based on the combined interspecies (10x) and intraspecies (10x) UFs. An additional 10x UF for lack of chronic data was not applied for the following reasons: (1) Progression of toxicity was not observed in the 28- and 90-day dietary studies in the rat: the NOAELs and LOAELs for both studies were the same, and the severity of the findings was minimal at both exposure durations; (2) evaluation of Cyp1a1 expression in the rat 28- and 90-day studies indicated that at the selected POD of 3 mg/kg/day, which is below the NOAELs for these studies, there is no expectation of significant AhR activation that could lead to liver toxicity. Observable liver toxicity in these studies was only associated with significantly greater levels of Cyp1a1; (3) halauxifen-methyl is rapidly metabolized to the acid, and neither bioaccumulate; and (4) based on comparative
Carcinogenicity studies on halauxifen-methyl were not conducted. Systemic exposure from halauxifen-methyl is primarily to XDE-729 acid, which showed no evidence of carcinogenicity. However, pre-systemic exposure of the liver to halauxifen-methyl was shown to activate the AhR receptor, an effect that induces an increase in hepatocellular proliferation and, subsequently, may promote an increased incidence of liver tumors with long-term exposure. The molecular marker for AhR activation, the MIE for liver toxicity, is increased expression of hepatic Cyp1a1, which was observed at a dose below the LOAEL for observable adverse effects of any type. The chronic dietary endpoint for halauxifen-methyl is based on the point of departure (POD) from the rat subchronic study for Cyp1a1 induction, as described above. The selected POD is considered very conservative because it is below the study NOAEL (the LOAEL was based on mild liver effects). Since Cyp1a1 induction is one of the early key events in the MOA leading to hepatotoxicity and promotion of hepatocellular proliferation, a dose that is protective of this event will be protective of the potential risk for liver cancer with chronic exposure, based on the rapid onset of AhR activation following initiation of exposure, and the lack of evidence of temporal progression of
A summary of the toxicological endpoints for XDE-729 acid used for human risk assessment is shown in Table 1(b) of this unit. No hazard from a single exposure was identified in the available database; therefore, no risk is expected from acute dietary exposure to XDE-729 acid. The chronic toxicity/carcinogenicity study using the rat was chosen to assess chronic dietary risk to XDE-729 acid. A NOAEL of 20.3 was chosen based on hyperplasia of the renal pelvic epithelium in females observed at 101 mg/kg/day. This NOAEL is protective of developmental effects, observed in the rat at 526 mg/kg/day (NOAEL = 140 mg/kg/day), and of maternal toxicity in both the rat (LOAEL = 526 mg/kg/day) and rabbit (LOAEL 1094 mg/kg/day).
There was no evidence of carcinogenicity in rat and mouse cancer studies on XDE-729 acid, which is classified as “not likely to be carcinogenic to humans.”
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Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of halauxifen-methyl were estimated for chronic exposure in a non-cancer assessment. Based on the Screening Concentration in Groundwater (SCI-GROW) model, the EDWCs of the XDE-729 acid metabolite were estimated for chronic exposure in a non-cancer assessment. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment of halauxifen-methyl only, the water concentration value of 0.007 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment of XDE-729 acid, a drinking water concentration value of 19.5 ppb was used to assess the contribution to drinking water.
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i. The toxicity database for halauxifen-methyl and XDE-729 acid are complete.
ii. There is no indication that halauxifen-methyl or XDE-729 acid are neurotoxic chemicals and there is no need for developmental neurotoxicity studies or additional UFs to account for neurotoxicity.
iii. There is no evidence to suggest that exposure to halauxifen-methyl or XDE-729 acid results in increased
iv. There are no residual uncertainties identified in the exposure databases. The chronic dietary food exposure assessment was based on 100 PCT and tolerance-level residues. EPA also made conservative assumptions in the ground and surface water modeling used to assess exposure to halauxifen-methyl and XDE-729 acid in drinking water. These assessments will not underestimate the exposure and risks posed by these compounds.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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Adequate enforcement methodology (LC-MS/MS) with a limit of quantitation of 0.01 ppm is available to enforce the tolerance expression. The multi-residue method, QuEChERS, is adequate for the determination of both residues of halauxifen-methyl and XDE-729 acid in crop commodities. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
No MRLs have been established by Codex for halauxifen-methyl on the commodities affected by this action.
As noted in Unit II, the petitioned-for livestock commodity tolerances (milk; fat, meat, meat byproducts of cattle, goat, horse, and sheep) are not being established due to the lack of quantifiable residues in livestock commodities associated with the proposed uses in wheat, barley and triticale. In addition, although the petitioner proposed a tolerance of 0.04 ppm for wheat, hay, EPA has determined that a tolerance of 0.03 ppm is appropriate. When the petitioner determined the proposed tolerances, the metabolite XDE-729 acid was included as a residue of concern. EPA has subsequently determined that this metabolite is not a residue of concern for tolerance enforcement. Residues of metabolite XDE-729 acid were not
Therefore, tolerances are established for residues of halauxifen-methyl, (methyl 4-amino-3-chloro-6-(4-chloro-2-fluoro-3-methoxyphenyl) pyridine-2-carboxylate) and its major metabolite, XDE-729 acid, expressed as halauxifen-methyl (parent) equivalents, in or on barley, (grain, hay, straw) and wheat, grain at 0.01 ppm; wheat, forage at 0.50 ppm; wheat, hay at 0.03 ppm; and wheat, straw at 0.015 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(b)
(c)
(d)
Environmental Protection Agency (EPA).
Direct final rule.
The State of Arkansas has applied to the United States Environmental Protection Agency (EPA) for final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for final authorization, and is authorizing the State's changes through this direct final rule. In the “Proposed Rules” section of this
This final authorization is effective on October 11, 2016 unless the EPA receives adverse written comment by September 12, 2016. If the EPA receives such comment, EPA will publish a timely withdrawal of this direct final rule in the
Submit your comments by one of the following methods:
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You can view and copy Arkansas' application and associated publicly available materials from 8:30 a.m. to 4 p.m. Monday through Friday at the following locations: Arkansas Department of Environmental Quality (ADEQ), 8101 Interstate 30, Little Rock, Arkansas 72219-8913, (501) 682-0876, and EPA, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, phone number (214) 665-8533. Interested persons wanting to examine these documents should make an appointment with the office at least two weeks in advance.
Alima Patterson, Region 6 Regional Authorization Coordinator, RCRA Permit Section (RPM), Multimedia Planning and Permitting Division, (214) 665-8533, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, and email address
States which have received final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask the EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA's regulations in 40 CFR parts 124, 260 through 268, 270, 273, and 279.
New Federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) take effect in authorized States at the same time that they take effect in unauthorized States. Thus, the EPA will implement those requirements and prohibitions in the State of Arkansas, including the issuance of new permits implementing those requirements, until the State is granted authorization to do so.
On November 30, 2015, Arkansas submitted a final complete program revision application seeking authorization of changes to its hazardous waste program that correspond to certain Federal rules promulgated between October 4, 2005 and January 3, 2014, including the adoption of portions of RCRA Clusters XVI and XVII, and RCRA Clusters XXII and XXIII (Checklists 211, 213, 214, and 228 through 232). The EPA concludes that Arkansas' application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, the EPA grants Arkansas final authorization to operate its hazardous waste program with the changes described in the authorization application, and as outlined below in Section G of this document. The State of Arkansas has responsibility for permitting treatment, storage, and disposal facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of HSWA, as discussed above. New Federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, the EPA will implement those requirements and prohibitions in Arkansas, including issuing permits, until the State is granted authorization to do so.
The effect of this decision is that a facility in Arkansas subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Arkansas has enforcement responsibilities under its State hazardous waste program for violations of such program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:
• Do inspections, and require monitoring, tests, analyses, or reports;
• Enforce RCRA requirements and suspend or revoke permits; and
• Take enforcement actions after notice to and consultation with the State.
This action does not impose additional requirements on the regulated community because the regulations for which Arkansas is being authorized by this action are already effective under State law, and are not changed by this action.
Along with this direct final rule, the EPA is publishing a separate document in the “Proposed Rules” section of this
EPA is providing an opportunity for public comment now, as described in Section E of this document.
If the EPA receives comments that oppose this authorization, EPA will withdraw this direct final rule by publishing a document in the
If EPA receives comments that oppose only the authorization of a particular change to the State hazardous waste program, EPA will withdraw only that part of this rule, but the authorization of the program changes that the comments do not oppose will become effective on the date specified in this document. The
Arkansas initially received final authorization on January 25, 1985, (50 FR 1513) to implement its Base Hazardous Waste Management program. Arkansas received authorization for revisions to its program on January 11, 1985 (50 FR 1513), effective January 25, 1985; March 27, 1990 (55 FR 11192), effective May 29, 1990; September 18, 1991 (56 FR 47153), effective November 18, 1991; October 5, 1992 (57 FR 45721), effective December 4, 1992; October 7, 1994 (59 FR 51115), effective December 21, 1994; April 24, 2002 (67 FR 20038), effective June 24, 2002; and August 15, 2007 (72 FR 45663), effective October 15, 2007. The authorized Arkansas RCRA program was incorporated by reference into the Code of Federal Regulations effective December 13, 1993 (58 FR 52674); June 28, 2010 (75 FR 36538), effective August 27, 2010; August 10, 2012 (77 FR 47779), effective October 9, 2012; and October 31, 2014 (79 FR 64678), effective December 30, 2014. The authorized Arkansas RCRA program was incorporated by reference into the Code of Federal Regulations October 12, 1993 (58 FR 52674) effective December 13, 1993; June 20, 1995 (60 FR 32112) effective August 21, 1995; June 28, 2010 (75 FR 36538) effective August 27, 2010; October 2, 2014 (79 FR 59438) effective December 1, 2014; January 29, 2016 (81 FR 4961) effective March 29, 2016. On November 30, 2015, Arkansas submitted a final complete program revision application seeking authorization of its program revision in accordance with 40 CFR 271.21.
The ADEQ has re-organized its agency and division's program areas and subunits, but all duties and responsibilities remain the same. Any differences between the State's provisions and the Federal provisions are noted on the individual revision Checklists. The official State regulations may be found in Arkansas Pollution Control and Ecology Commission Regulation Number 23 (Hazardous Waste Management), last amended September 25, 2015, effective October 18, 2015.
The provisions for which the State is seeking authorization are documented in the Rule Revision Checklists 211, 213, 214, and 228 through 232, which are portions of RCRA Clusters XVI and XVII, and RCRA Clusters XXII and XXIII. Reference to Arkansas Code Annotate (A.C.A) of 1987, Annotated, as amended August 2015. Reference to Arkansas Pollution Control and Ecology Commission (APC&EC) Regulations Number 23, (Hazardous Waste Management) (formerly titled the Arkansas Hazardous Waste Management Code), last amended September 25, 2015, to adopt all final rules promulgated by the EPA through June 26 2014, which became, effective on October 18, 2015. Dates of enactment and adoption for other statutes or regulations are given when cited.
On November 30, 2015, the State of Arkansas submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a direct final decision, subject to receipt of written comments that oppose this action, that the State of Arkansas' hazardous waste program revision is equivalent to, consistent with, and no less stringent than the Federal program, and therefore satisfies all of the requirements necessary to qualify for final authorization. Therefore, the EPA grants the State of Arkansas final authorization for portions of RCRA Clusters XVI and XVII, and RCRA Clusters XXII and XXIII (Checklists 211, 213, 214, and 228 through 232). The State of Arkansas program revisions consist of regulations which specifically govern Federal Hazardous Waste revisions promulgated October 4, 2005, April 4, 2006, July 14, 2006, April 13, 2012, and July 2013 through June 2014, which are listed in a chart below.
The State of Arkansas regulations that are more stringent than the Federal regulations are documented in the above chart. For enforcement purposes, the EPA does not enforce broader in scope provisions.
The Federal Hazardous Waste Electronic Manifest Rule (79 FR 7518; February 7, 2014) contains several provisions which are non-delegable to States. Specifically, States cannot receive authorization to establish a Federal user under the electronic manifest requirements, nor can States receive authorization for the electronic signature requirements, resulting in the States' inability to implement the provisions listed below. However, EPA strongly recommends States adopt these provisions while retaining the EPA rule language unchanged; Arkansas has adopted the Electronic Manifest Rule using this approach. The non-delegable provisions and provisions where States must retain references to “EPA” are: 40 CFR 260.10 “electronic manifest”, “electronic manifest system”, “use of the electronic manifest system”; 262.24(g); 262.25; 263.20(a)(2); 262.20(a)(3)(ii); 263.20(a)(8); 264.71(a)(2)(v); 264.71(j); 265.71(a)(2)(v); and 265.71(j).
The State of Arkansas will issue permits for all the provisions for which it is authorized and will administer the permits it issues. The EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization. EPA will not issue any more new permits or new portions of permits for the provisions listed in the chart in this document after the effective date of this authorization. The EPA will continue to implement and issue permits for HSWA requirements for which ADEQ is not yet authorized.
The State of Arkansas Hazardous Program is not being authorized to operate in Indian Country.
Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the CFR. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart E for this authorization of Arkansas' program changes until a later date. In this authorization application the EPA is not codifying the rules documented in this
The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. The reference to Executive Order 13563 (73 FR 3821, January 21, 2011) is also exempt from review under Executive orders 12866 (56 FR 51735, October 4, 1993). This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
Under RCRA 3006(b), the EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application; to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
This action is issued under the authority of sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b).
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule; correction and correcting amendment.
This document corrects technical and typographical errors that appeared in the final rule published in the March 8, 2016
Allison Yadsko (410) 786-1740.
In FR Doc. 2016-04439 (81 FR 12204), the final rule entitled “Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2017” (2017 Payment Notice), there were technical errors that are identified and corrected in section IV, the Correction of Errors. These corrections are applicable as of May 9, 2016.
On page 12296, the phrase “paragraphs (c)(1)(ii) and (c)(2)(iii) of this paragraph” should include a reference to “(c)(3)(ii).” This correction clarifies how the provisions are at least as stringent as the requirements of paragraph (c) and aligns with the next paragraph that clarifies we do not believe that applying timeframes less stringent than those in the current § 156.122(c) would benefit enrollees.
On pages 12310 and 12311 the word “consecutive” should have been attached to the description of the grace period for enrollees receiving advance payments of the premium tax credit (APTC), for the description to be consistent with the regulation text that was promulgated prior to the Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2017; Final Rule. This correction accurately reflects the length of the grace period for enrollees receiving APTC as being 3 consecutive months.
On page 12349, in § 156.122(c)(4)(i)(D), we inadvertently omitted a cross-reference to paragraph (c)(3)(ii).
On page 12350, in § 156.270(d) introductory text, we inadvertently omitted the word “consecutive” from the language describing the length of the grace period for enrollees receiving APTC.
Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of the proposed rule in the
In our view, this correcting document does not constitute a rulemaking that would be subject to these requirements. This document merely corrects typographical and technical errors in the 2017 Payment Notice. The corrections contained in this document are consistent with, and do not make substantive changes to, the policies that were adopted subject to notice and comment procedures in the 2017 Payment Notice. As a result, the corrections made through this correcting document are intended to ensure that the 2017 Payment Notice accurately reflects the policies adopted in that rule.
Even if this were a rulemaking to which the notice and comment and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the 2017 Payment Notice or delaying the effective date of the corrections would be contrary to the public interest because it is in the public interest to ensure that the 2017 Payment Notice accurately reflects our final policies as soon as possible following the date they take effect. Further, such procedures would be unnecessary, because we are not altering the payment methodologies or policies, but rather, we are simply correcting the
In FR Doc. 2016-04439 (81 FR 12204), published March 8, 2016, make the following corrections:
1. On page 12296, in the second column, in the first full paragraph, lines 18 and 19, the phrase “paragraphs (c)(1)(ii) and (c)(2)(iii) of this paragraph” is corrected to read “paragraphs (c)(1)(ii), (c)(2)(iii), and (c)(3)(ii) of this section”.
2. On page 12310,
a. In the third column, second full paragraph, line 3, the phrase “3-month grace period” is corrected to read “3 consecutive month grace period”.
b. In the third column, second full paragraph, line 29, the phrase “3-month grace period” is corrected to read “3 consecutive month grace period”.
c. In the third column, second full paragraph, line 38, the phrase “grace period of 3 months” is corrected to read “grace period of 3 consecutive months”.
3. On page 12311,
a. In the first column, in the first full paragraph, line 7, the phrase “3-month grace period” is corrected to read “3 consecutive month grace period”.
b. In the first column, in the first full paragraph, line 17, the phrase “3-month grace period” is corrected to read “3 consecutive month grace period”.
c. In the first column, in the first full paragraph, lines 24 through 25, the phrase “3-month grace period” is corrected to read “3 consecutive month grace period”.
d. In the second column, in the first full paragraph, line 8, the phrase “3-month grace period” is corrected to read “3 consecutive month grace period”.
e. In the second column, in the second full paragraph, line 14, the phrase “3-month grace period” is corrected to read “3 consecutive month grace period”.
f. In the second column, in the third full paragraph, line 13, the phrase “3-month grace period” is corrected to read “3 consecutive month grace period”.
g. In the second column, in the third full paragraph, line 22, the phrase “3-month grace period” is corrected to read “3 consecutive month grace period”.
h. In the third column, in the first partial paragraph, line 12, the phrase “3-month grace period” is corrected to read “3 consecutive month grace period”.
Administrative practice and procedure, Advertising, American Indian/Alaska Natives, Conflict of interest, Consumer protection, Cost-sharing reductions, Essential Health Benefits, Prescription drug benefit, Grant programs-health, Grants administration, Health care, Health insurance, Health maintenance organization (HMO), Health records, Hospitals, Individuals with disabilities, Loan programs-health, Medicaid, Organization and functions (Government agencies), Public assistance programs, Reporting and recordkeeping requirements, State and local governments, Sunshine Act, Technical assistance, Women, Youth.
Accordingly, the Department of Health and Human Services corrects 45 CFR part 156 by making the following correcting amendments:
Title I of the Affordable Care Act, sections 1301-1304, 1311-1313, 1321- 1322, 1324, 1334, 1342-1343, 1401-1402, Pub. L. 111-148, 124 Stat. 119 (42 U.S.C. 18021-18024, 18031-18032, 18041-18042, 18044, 18054, 18061, 18063, 18071, 18082, 26 U.S.C. 36B, and 31 U.S.C. 9701).
Denali Commission.
Notice of final NEPA implementation rule.
This document contains the final Denali Commission policies and procedures for compliance with the National Environmental Policy Act of 1969 (NEPA), as amended. This action is necessary to implement these procedures and make them available to the public on the Commission's internet site.
Effective September 12, 2016.
Mr. John Whittington, 907-271-1414.
Established by Congress in 1998, the Denali Commission (Commission) is an innovative federal-state partnership designed to provide critical utilities, infrastructure, and economic support throughout Alaska. With the creation of the Commission, Congress acknowledged the need for increased inter-agency cooperation and focus on Alaska's remote communities. Since its first meeting in April 1999, the Commission is credited with constructing numerous cost-shared infrastructure projects across the State that exemplify effective and efficient partnership between federal and state agencies, and the private sector.
The National Environmental Policy Act (NEPA) and implementing regulations promulgated by the Council on Environmental Quality (CEQ) (40 CFR parts 1500-1508) established a broad national policy to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations of Americans. The CEQ regulations implementing the procedural provisions of NEPA are designed to ensure that this national policy, environmental considerations, and associated public concerns are given careful attention and appropriate weight in all decisions of the federal government. Sections 102(2) of NEPA and 40 CFR 1505.1 and 1507.3 require federal agencies to develop and, as needed, revise implementing procedures consistent with the CEQ regulations. The Denali Commission is issuing the following NEPA implementing procedures that comply with NEPA and supplement the CEQ regulations. The remaining sections of
In accordance with CEQ regulations (40 CFR 1507.3), the Commission consulted with the CEQ prior to publication of the proposed rule. On August 10, 2004, the Commission published a proposed rule in the
The final rule published today reflects the Commission's consideration of and responses to the public comments received on the revised proposed rule.
These procedures are final and will be made available to the public in the Code of Federal Regulations (CFR) and on the Commission's internet site at
The Commission received, reviewed and considered one comment on the proposed 2015 rule. The comment, however, was not substantive and no changes were made in response to the comment. Also considered were any substantive changes resulting from consultation with the CEQ.
Paragraph (e) was added to clarify that the Approving Official will be responsible for coordinating comments with cooperating agencies and other federal agencies.
Language was added requiring hard copies of NEPA documents to be provided to local governmental and/or tribal entities in the effected communities.
The Commission added language clarifying the process for adoption of other environmental documents and incorporation by reference of other documents into an EA. Paragraphs (c) and (d) were eliminated because they were redundant and paragraph (e) was renumbered as paragraph (c).
Paragraph (c) (Mitigated FONSI) was added to clarify the distinction between a mitigated FONSI and accepting a proposal with modifications (paragraph (b)).
The Commission identified large scale infrastructure construction projects such as the relocation of an entire community as projects normally requiring an EIS.
Administrative practice and procedure, Environmental impact statements, Environmental protection.
For the reasons stated in the preamble, the Denali Commission is adding chapter IX, consisting of parts 900 through 999, to title 45 of the CFR to read as follows:
42 U.S.C. 3121, 4321; 40 CFR parts 1500 through1508.
This regulation prescribes the policies and procedures of the Denali Commission (Commission) for implementing the National Environmental Policy Act of 1969 (NEPA) as amended (42 U.S.C. 4321-4347) and the Council on Environmental Quality (CEQ) Regulations for Implementing the Procedural Provisions of NEPA (40 CFR parts 1500 through 1508). This regulation also addresses other related federal environmental laws, statutes, regulations, and Executive Orders that apply to Commission actions. This part adopts, supplements, and is to be used in conjunction with, 40 CFR parts 1500 through 1508, consistent with 40 CFR 1507.3.
It is the policy of the Commission to:
(a) Comply with the procedures and policies of NEPA and other related environmental laws, regulations, and orders applicable to Commission actions;
(b) Provide guidance to applicants responsible for ensuring that proposals comply with all appropriate Commission requirements;
(c) Integrate NEPA requirements and other planning and environmental review procedures required by law or Commission practice so that all such procedures run concurrently rather than consecutively;
(d) Encourage and facilitate public involvement in Commission decisions that affect the quality of the human environment;
(e) Use the NEPA process to identify and assess reasonable alternatives to proposed Commission actions to avoid or minimize adverse effects upon the quality of the human environment;
(f) Use all practicable means consistent with NEPA and other essential considerations of national policy to restore or enhance the quality of the human environment and avoid, minimize, or otherwise mitigate any possible adverse effects of the Commission's actions upon the quality of the human environment; and
(g) Consider and give important weight to factors including customary and traditional uses of resources, recreation, and the objectives of Federal, regional, State, local and tribal land use plans, policies, and controls for the area concerned in developing proposals and making decisions in order to achieve a proper balance between the development and utilization of natural, cultural and human resources and the protection and enhancement of environmental quality (see NEPA section 101 and 40 CFR 1508.14). In particular the Commission will consider potential effects on subsistence activities, which are critically important to the daily existence of Alaska Native villages.
(a) For the purposes of this part, the definitions in the CEQ Regulations, 40 CFR parts 1500 through 1508, are adopted and supplemented as set out in paragraphs (a)(1) through (5) of this section. In the event of a conflict the CEQ Regulations apply.
(1)
(2)
(3)
(4)
(5)
(b) The following abbreviations are used throughout this part:
(1) CATEX—Categorical exclusions;
(2) CEQ—Council on Environmental Quality;
(3) EA—Environmental assessment;
(4) EIS—Environmental impact statement;
(5) FONSI—Finding of no significant impact;
(6) NEPA—National Environmental Policy Act of 1969, as amended;
(7) NOI—Notice of intent; and
(8) ROD—Record of decision.
The Denali Commission was created to deliver the services of the federal government in the most cost-effective manner practicable. In order to reduce administrative and overhead costs, the Commission partners with federal, state and local agencies and Alaska Native villages and commonly depends on these governmental agencies for project management. Consequently, the Commission generally relies on the expertise and processes already in use by partnering agencies to help prepare Commission NEPA analyses and documents.
(a) With federal partners, the Commission will work as either a joint lead agency (40 CFR 1501.5 and 1508.16) or cooperating agency (40 CFR 1501.6 and 1508.5). The Commission may invite other Federal agencies to serve as the lead agency, a joint lead agency, or as a cooperating agency.
(b) Consistent with 40 CFR 1508.5, the Commission will typically invite Alaska Native villages and state and local government partners to serve as cooperating agencies.
(c) Requests for the Commission to serve as a lead agency (40 CFR 1501.5(d)), for CEQ to determine which Federal agency shall be the lead agency (40 CFR 1501.5(e)), or for the Commission to serve as a cooperating agency (40 CFR 1501.6(a)(1)) shall be mailed to the Commission office.
(a) Applicants shall work under Commission direction provided by the Approving Official, and assist the Commission in fulfilling its NEPA obligations by preparing NEPA analyses and documents that comply with the provisions of NEPA (42 U.S.C. 4321-4347), the CEQ Regulations (40 CFR parts 1500 through 1508), and the requirements set forth in this part.
(b) Applicants shall follow Commission direction when they assist the Commission with the following responsibilities, among others:
(1) Prepare and disseminate applicable environmental documentation concurrent with a proposal's engineering, planning, and design;
(2) Create and distribute public notices;
(3) Coordinate public hearings and meetings as required;
(4) Submit all environmental documents created pursuant to this part to the Commission for review and approval before public distribution;
(5) Participate in all Commission-conducted hearings or meetings;
(6) Consult with the Commission prior to obtaining the services of an environmental consultant; in the case that an EIS is required, the consultant or contractor will be selected by the Commission; and
(7) Implement mitigation measures included as voluntary commitments by the applicant or as requirements of the applicant in environmental documents.
(a) The Federal Co-Chair or his/her designee shall designate an Approving Official for each Commission proposal, and shall provide environmental guidance to the Approving Official;
(b) The Approving Official shall provide direction and guidance to the applicant as well as identification and development of required analyses and documentation;
(c) The Approving Official shall make an independent evaluation of the environmental issues, take responsibility for the scope and content of the environmental document (EA or EIS), and make the environmental finding;
(d) The Approving Official shall ensure mitigation measures included in environmental documents are implemented; and
(e) The Approving official shall be responsible for coordinating communications with cooperating agencies and other federal agencies.
In accordance with § 900.104, the Commission may defer the lead agency role to other federal agencies in accordance with 40 CFR 1501.5, and the Commission will then exercise its role as either a joint lead or a cooperating agency in accordance with 40 CFR 1501.6.
(a) When public involvement is required pursuant to subparts C and D of this part, interested persons and the affected public shall be provided notice of the availability of environmental documents, NEPA-related hearings, and public meetings. Such notice will be made on the Commission Web site and other means such that the community is notified (
(b) Applicants shall assist the Commission in providing the opportunity for public participation and considering the public comments on the proposal as described in subparts C and D of this part.
(c) Interested persons can obtain information or status reports on EISs and other elements of the NEPA process from the Commission's office at 510 L Street, Suite 410; Anchorage, Alaska 99501; or on the Commission Web site at
(d) In the interests of national security or the public health, safety, or welfare, the Commission may reduce any time periods that the Commission has established and that are not required by the CEQ Regulations. The Commission shall publish a notice on the Web site at
(a)
(b)
(a)
(b)
(c)
(d)
(a) The Commission shall determine whether any Commission proposal:
(1) Is categorically excluded from preparation of either an EA or an EIS;
(2) Requires preparation of an EA; or
(3) Requires preparation of an EIS.
(b) Notwithstanding any other provision of this part, the Commission may prepare a NEPA document to assist any Commission action at any time in order to further the purposes of NEPA. This NEPA document may be done to analyze the consequences of ongoing Commission activities, to support Commission planning, to assess the need for mitigation, to disclose fully the potential environmental consequences of Commission actions, or for any other reason. Documents prepared under this paragraph shall be prepared in the same manner as Commission documents prepared under this part.
(a)
(b)
(1) The action has not been segmented (too narrowly defined or broken down into small parts in order minimize its potential effects and avoid a higher level of NEPA review) and its scope includes the consideration of connected actions and, when evaluating extraordinary circumstances, cumulative impacts.
(2) No extraordinary circumstances described in paragraph (c) of this section exist, unless resolved through other regulatory means.
(3) One categorical exclusion described in either section of appendix A of this part encompasses the proposed action.
(c)
(1) Have a reasonable likelihood of significant impacts on public health, public safety, or the environment;
(2) Have effects on the environment that are likely to be highly controversial or involve unresolved conflicts concerning alternative uses of available resources;
(3) Have possible effects on the human environment that are highly uncertain, involve unique or unknown risks, or are scientifically controversial;
(4) Establish a precedent for future action or represent a decision in principle about future actions with potentially significant environmental effects;
(5) Relate to other actions with individually insignificant but cumulatively significant environmental effects;
(6) Have a greater scope or size than is normal for the category of action;
(7) Have the potential to degrade already existing poor environmental conditions or to initiate a degrading influence, activity, or effect in areas not already significantly modified from their natural condition;
(8) Have a disproportionately high and adverse effect on low income or minority populations (see Executive Order 12898);
(9) Limit access to and ceremonial use of Indian sacred sites on federal lands by Indian religious practitioners or adversely affect the physical integrity of such sacred sites (see Executive Order 13007);
(10) Threaten a violation of a federal, tribal, state or local law or requirement imposed for the protection of the environment;
(11) Have a reasonable likelihood of significant impact to subsistence activities; or
(12) Have a reasonable likelihood of significant impacts on environmentally sensitive resources, such as:
(i) Properties listed, or eligible for listing, in the National Register of Historic Places;
(ii) Species listed, or proposed to be listed, on the List of Endangered or Threatened Species, or their habitat; or
(iii) Natural resources and unique geographic characteristics such as historic or cultural resources; park, recreation or refuge lands; wilderness areas; wild or scenic rivers; national natural landmarks; sole or principal drinking water aquifers; prime farmlands; special aquatic sites (defined under Section 404 of the Clean Water Act); floodplains; national monuments; and other ecologically significant or critical areas.
(a) An EA is required for all proposals, except those exempt from NEPA or categorically excluded under this part, and those requiring or determined to require an EIS. EAs provide sufficient evidence and analysis to determine whether to prepare an EIS or a finding of no significant impact (FONSI).
(b) In addition, an EA may be prepared on any action at any time in order to assist in planning and decision making, to aid in the Commission's compliance with NEPA when no EIS is necessary, or to facilitate EIS preparation.
(c) EAs shall be prepared in accordance with subpart C of this part and shall contain analyses to support conclusions regarding environmental impacts. If a FONSI is proposed, it shall
An EIS is required when the project is determined to have a potentially significant impact on the human environment. EISs shall be prepared in accordance with subpart D of this part.
(a) A programmatic NEPA review is used to assess the environmental impacts of a proposed action that is broad in reach, such as a program, plan, or policy (see 40 CFR 1502.4). Analyses of subsequent actions that fall within the program, plan, or policy may be tiered to the programmatic review, as described in 40 CFR 1502.20 and 1508.28.
(b) Programmatic NEPA reviews may take the form of a programmatic EA or a programmatic EIS.
(c) A programmatic EA shall meet all of the requirements for EAs in subpart C of this part, including those for content and public involvement. In order to adopt a programmatic EA prepared by another agency that did not provide the same public involvement opportunities as the Commission, the Commission shall provide notice of the availability of the programmatic EA and make it available for public comment consistent with § 900.303(b) and (c) before adopting it.
(d) A programmatic EIS shall meet all of the requirements for EISs in subpart D of this part and in 40 CFR parts 1500 through 1508.
(a) An EA shall include brief discussions of the need for the proposal; of alternatives to the proposal as required by NEPA section 102(2)(E); and of the environmental impacts of the proposal and alternatives. The EA shall also include a listing of agencies and persons consulted in the preparation of the EA.
(b) An EA may describe a broad range of alternatives and proposed mitigation measures to facilitate planning and decisionmaking.
(c) The EA should also document compliance, to the extent possible, with all applicable environmental laws and Executive Orders, or provide reasonable assurance that those requirements can be met.
(d) The EA should be a concise public document. The level of detail and depth of impact analysis will normally be limited to the minimum needed to determine the significance of potential environmental effects.
(a)
(b)
(a) Commission approval is required before an EA is made available to the public and the notice of availability is published.
(b) The public shall be provided notice of the availability of EAs and draft FONSIs in accordance with 40 CFR 1506.6 and § 900.108(a) by the Approving Official. The Approving Official is responsible for making the EA available for public inspection and will provide hard copies on request to the affected units of Alaska Native/American Indian tribal organizations and/or local government.
(c) EAs and draft FONSIs will be available for public comment for not less than 15 calendar days but may be published for a longer period of time as determined by the Approving Official.
(d) Final Commission action will be taken after public comments received on an EA and draft FONSI are reviewed and considered.
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(e)
(1) The proposed action is, or is closely similar to, one which normally requires the preparation of an environmental impact statement under § 900.405; or
(2) The nature of the proposed action is one without precedent.
Proposals that normally require preparation of an EA include the following:
(a) Initial field demonstration of a new technology; and
(b) Field trials of a new product or new uses of an existing technology.
(a) The Commission shall publish a NOI, as described in 40 CFR 1508.22, in the
(b) Publication of the NOI in the
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a) Supplements to either draft or final EISs shall be prepared, as prescribed in 40 CFR 1502.9, when the Commission finds that there are substantial changes are proposed in a project that are relevant to environmental concerns; or when there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.
(b) Where Commission action remains to be taken and the EIS is more than three years old, the Commission will review the EIS to determine whether it is adequate or requires supplementation.
(c) The Commission shall prepare, circulate and file a supplement to an EIS in the same fashion (exclusive of scoping) as a draft and final EIS. In addition, the supplement and accompanying administrative record shall be included in the administrative record for the proposal. When an applicant is involved, the applicant shall, under the direction of the approving official, provide assistance.
(d) An NOI to prepare a supplement to a final EIS will be published in those cases where a ROD has already been issued.
(a) The Commission may adopt a draft or final EIS or portion thereof (see 40 CFR 1506.3), including a programmatic EIS, prepared by another agency.
(b) If the actions covered by the original EIS and the proposal are substantially the same, the Commission shall recirculate it as a final statement. Otherwise, the Commission shall treat the statement as a draft and recirculate it except as provided in paragraph (c) of this section.
(c) Where the Commission is a cooperating agency, it may adopt the EIS of the lead agency without recirculating it when, after an independent review of the EIS, the Commission concludes that its comments and suggestions have been satisfied.
(d) When the Commission adopts an EIS which is not final within the agency that prepared it, or when the action it assesses is the subject of a referral under 40 CFR part 1504, or when the EIS's adequacy is the subject of a judicial action which is not final, the Commission shall so specify.
An EIS will normally be required for:
(a) Large scale infrastructure construction efforts such as the relocation of an entire community;
(b) A project that requires a formal consultation under Section 7 of the Endangered Species Act; or
(c) Where implementation of the proposal may directly cause or induce changes that significantly:
(1) Displace population;
(2) Alter the character of existing residential areas; or
(3) Adversely affect a floodplain.
Actions consistent with any of the following categories are, in the absence of extraordinary circumstances, categorically excluded from further analysis in an EA or EIS:
A1. Routine administrative and management activities including, but not limited to, those activities related to budgeting, finance, personnel actions, procurement activities, compliance with applicable executive orders and procedures for sustainable or “greened” procurement, retaining legal counsel, public affairs
A2. Routine activities that the Commission does to support its program partners and stakeholders, such as serving on task forces, ad hoc committees or representing Commission interests in other forums.
A3. Approving and issuing grants for administrative overhead support.
A4. Approving and issuing grants for social services, education and training programs, including but not limited to support for Head Start, senior citizen programs, drug treatment programs, and funding internships, except for projects involving construction, renovation, or changes in land use.
A5. Approving and issuing grants for facility planning and design.
A6. Nondestructive data collection, inventory, study, research, and monitoring activities (
A7. Research, planning grants and technical assistance projects that are not reasonably expected to commit the federal government to a course of action, to result in legislative proposals, or to result in direct development.
A8. Acquisition and installation of equipment including, but not limited to, EMS, emergency and non-expendable medical equipment (
Actions consistent with any of the following categories are, in the absence of extraordinary circumstances, categorically excluded from further analysis and documentation in an EA or EIS upon completion of the Denali Commission CATEX checklist:
B1. Upgrade, repair, maintenance, replacement, or minor renovations and additions to buildings, roads, harbors and other maritime facilities, grounds, equipment, and other facilities, including but not limited to, roof replacement, foundation repair, ADA access ramp and door improvements, weatherization and energy efficiency related improvements, HVAC renovations, painting, floor system replacement, repaving parking lots and ground maintenance, that do not result in a change in the functional use of the real property.
B2. Engineering studies and investigations that do not permanently change the environment.
B3. Construction or lease of new infrastructure including, but not limited to, health care facilities, community buildings, housing, and bulk fuel storage and power generation plants, where such lease or construction:
(a) Is at the site of existing infrastructure and capacity is not substantially increased; or
(b) Is for infrastructure of less than 12,000 square feet of useable space when less than two aces of surface land area are involved at a new site.
B4. Construction or modification of electric power stations or interconnection facilities (including, but not limited to, switching stations and support facilities).
B5. Construction of electric powerlines approximately ten miles in length or less, or approximately 20 miles in length or less within previously disturbed or developed powerline or pipeline rights-of-way.
B6. Upgrading or rebuilding approximately twenty miles in length or less of existing electric powerlines, which may involve minor relocations of small segments or the powerlines.
B7. Demolition, disposal, or improvements involving buildings or structures when done in accordance with applicable regulations, including those regulations applying to removal of asbestos, polychlorinated biphenyls (PCBs), and other hazardous materials.
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (FCC or Commission) revises its rules governing the Emergency Alert System (EAS) to add three new EAS event codes, covering extreme wind and storm surges, as well as revise the territorial boundaries of the geographic location codes for two offshore marine areas.
Effective September 12, 2016.
Lisa Fowlkes, Deputy Bureau Chief, Public Safety and Homeland Security Bureau, at (202) 418-7452, or by email at
This is a summary of the Commission's Order (
1. The
2. The EAS is a national public warning system through which broadcasters, cable systems, and other EAS Participants deliver alerts to the public to warn them of impending emergencies and dangers to life and property. The primary purpose of the EAS is to provide the President with “the capability to provide immediate communications and information to the general public at the national, state and local levels during periods of national emergency.” The EAS also is used by state and local governments, as well as the NWS, to distribute alerts. According to NWS, about 90 percent of all EAS activations are generated by NWS and relate to short-term weather events. The Commission, the Federal Emergency Management Agency (FEMA), and NWS implement the EAS at the federal level. The EAS is a broadcast-based, hierarchical alert message distribution system through which an alert message originator at the local, state or national level encodes (or arranges to have encoded) a message in the EAS Protocol, which provides basic information about the emergency involved. The message is then broadcast by one or more EAS Participants and subsequently relayed from one station to another until all affected EAS Participants have received the alert and delivered it to the public. This process of EAS alert distribution among EAS Participants is often referred to as the “daisy chain” distribution architecture.
3. The EAS Protocol utilizes fixed codes to identify various aspects of the alert. Of particular relevance to the
4. NWS requested that the Commission add a new “Extreme Wind Warning” (EWW) event code to provide the public with advance notice of the onset of extreme sustained surface winds (greater than or equal to 115 miles per hour) associated with a major land-falling hurricane (Category 3 or higher). NWS also requested that the Commission add two new event codes covering storm surges: “Storm Surge Watch” (SSA) and “Storm Surge Warning” (SSW). NWS indicated that the “Storm Surge Watch/Warning will be issued when there is a significant risk of life-threatening inundation from rising water moving inland from the ocean.”
5.
6. We do not find EAS equipment manufacturer, TFT, Inc.'s (TFT), arguments against adoption of the new event codes persuasive. The dangers posed by hurricane-induced extreme high winds and storm surges are well established, and the record in this proceeding establishes a need and desire for adoption of these codes to better address such dangers. The National Association of Broadcasters, for example, states that “[e]xplicit codes for storm surges and warnings would better reflect their rapid development and movement than the existing codes for a flood watch or warning, or other water-related situations.” Radio Hatteras states that “[t]he addition of EWW, SSA and SSW codes would significantly enhance public safety in coastal regions” TFT's objection that the public will not appreciate the nuances between the specific dangers posed by extreme winds and storm surges caused by a hurricane and the dangers posed generally by the hurricane itself has no support in the record. Monroe County Florida Emergency Management, for example, contends that “[s]tudies show, the public is more likely to follow protective action recommendation, such as evacuations or shelter in place, or limit travel, if the directives are clearly and concisely communicated to them.” Moreover, the NWS indicates that having the new codes become effective in the summer of 2016 will provide the NWS sufficient time to conduct outreach and education on the meaning of these new codes before the NWS begins to issue alerts using these codes for the 2017 hurricane season. The outreach and education that NWS intends to conduct will include a public education campaign, including “public service announcements over NWR; NWS News Releases; official NWS Service Change Notifications; advertising on NWS Web sites; updates to official preparedness brochures and pamphlets; briefings to emergency managers; presentations at federal, state and local hurricane conferences; concurrent outreach and partnering efforts with FEMA; and extensive community outreach efforts by the NWS Warning Coordination Meteorologist in every Weather Forecast Office impacted by tropical cyclones.”
7. NWS also requested that the Commission revise the areas defined in the geographic location codes identified in Section 11.31(f) of the EAS rules as location codes 75 and 77, which cover offshore marine areas. Specifically, NWS indicated that it has changed the end point it uses for generating weather alerts for both of these areas from Bonita Beach, Florida, to Ocean Reef, Florida, and, accordingly, requested that the area covered by location code 75 be changed to “Western North Atlantic Ocean, and along U.S. East Coast, south of Currituck Beach Light, NC, following the coastline to Ocean Reef, FL, including the Caribbean,” and that the area covered by location code 77 be changed to “Gulf of Mexico, and along the U.S. Gulf Coast from the Mexican border to Ocean Reef, FL.” NWS stated that harmonizing the definitions for these areas in the EAS rules to match those used by the NWS would alleviate potential confusion among broadcasters, the emergency management community and the maritime commerce community that issue and monitor alerts for these areas. NWS again noted that it had checked with several EAS encoder/decoder manufacturers, and was informed that the cost and time to make the requested change would be nominal.
8.
9. We do not find TFT's arguments against adoption of the new location codes persuasive. Whether these codes are widely used or not, we do not see what public interest would be served by allowing continued disharmony between the EAS definitions and those used by the NWS, particularly as these could lead to marine alerts not reaching their intended audiences as well as confusion among the maritime users operating in these geographic areas, potentially placing the safety of vessels and their crews at risk. Further, EAS Participants may install and utilize the revised codes as they deem fit, and we find that the EAS Participants that actually use these codes are best situated to determine whether use of the revised location codes is necessary and meaningful to the areas they serve.
10. Finally, we also revise footnote 1 of Section 11.31 to delete the reference to the past deadline and to clarify that the numbers assigned to the offshore marine areas listed in the table of geographic areas in Section 11.31(f), while consistent with the ANSI standard, are not a product of that standard, but rather were assigned by the NWS. No party commented on that proposed change, which in any event, is largely administrative in nature. We conclude that harmonizing the definitions in the EAS with those used by the NWS will eliminate the potential for needless confusion among EAS Participants, the emergency management community and the maritime commerce community as to the geographic application of these codes, and maintain the efficiency of marine operations and safety of vessels and their crews.
11. The Commission observes that EAS equipment manufacturers have indicated in the record that the new codes and code revisions can be implemented by EAS Participants via minimally burdensome and low-cost software downloads. Further, use of these codes is not mandatory for EAS Participants; EAS Participants are free to implement them if and when they see fit, thus reducing the overall costs to EAS Participants even further.
12. We observe that although EAS equipment manufacturers must make the new event and locations codes available to all EAS Participants, these manufacturers have indicated in the record that the codes can be implemented by EAS Participants via minimally burdensome and low cost software downloads. Further, use of these codes is not mandatory for EAS Participants; EAS Participants are free to implement them if and when they see fit, thus reducing the overall costs to EAS Participants even further. While some currently deployed legacy EAS device models may not be capable of being updated to accommodate these codes, we observe that any such equipment already is required to be replaced to accommodate the recently adopted NPT event code and “000000” geographic code for national testing no later than July 30, 2016, thus, no EAS Participant will be faced with the cost of obtaining new EAS equipment simply to use the new event codes and geographic locations code revisions adopted in this item.
13. Based on the record, we anticipate that the only cost to EAS Participants who elect to install these new event codes and geographic location code revisions will be whatever labor cost is involved in downloading the software patches into their devices and associated clerical work. We further anticipate that such installation would not on average take more than one hour. However, even using a worst case cost figure of $125.00 per device—which figure represents the labor cost estimate approved by the Office of Management and Budget for an EAS Participant to fill out the Commission's online reporting form for EAS National Tests at a total time expenditure of
14. With respect to benefits, we have proposed that the benchmark for measuring these types of expected benefits should be the value of a statistical life (VSL), currently estimated at $9.1 million. Accordingly, the value of this risk reduction to the public, measured in terms of expected lives saved, is at least $9.1 million, which far exceeds the one-time, highly conservative $3.5 million aggregated cost estimate if each and every EAS Participant across the U.S. elected to implement these new codes and code revisions. Furthermore, this expected benefit is a conservative valuation because the EAS is likely to save more than just one life in the event of a storm surge or extreme high winds caused by a Category 3 or higher hurricane, will accrue annually, and does not include the benefits associated with reducing injuries and associated medical costs, mitigating property damage, and minimizing the disruption of our national economy. Accordingly, we conclude that the minor burdens associated with adopting these codes will be more than offset by the benefits to public safety that will accrue from the introduction of these new codes into the EAS alerting framework.
15.
16. We will not mandate installation of these codes. First, the event codes and location code revisions adopted in this item are germane to only a relatively small subset of EAS Participants located in areas affected by hurricane high winds and storm surges. We believe EAS Participants in these areas already are highly motivated to install and use these codes, as demonstrated by NWS's surveys. Second, as indicated, this approach is consistent with the approach taken by the Commission the only other time it adopted event and location codes, and that time the Commission adopted codes that were germane to all EAS Participants. Third, the use by EAS Participants of these codes, like all State
17. Although we are not mandating that EAS Participants upgrade their existing EAS equipment to incorporate the new event codes and location code revisions, we will require EAS Participants who replace their EAS equipment after one year from the effective date of this
18. With respect to transitioning to the new codes, NWS has indicated that it will not initiate alerts using any of the proposed codes until the 2017 Atlantic Hurricane season. The NWS states that focusing on the 2017 Atlantic Hurricane season will allow the NWS to deploy the codes in a uniform manner, and will allow for an extensive public outreach program. The 2017 Atlantic Hurricane season falls well outside of the six month deadline we adopt today for equipment yet to be manufactured or sold and the one year deadline we require for EAS Participants who replace their EAS equipment. Thus, EAS Participants will have sufficient time to install the codes or purchase compliant equipment in time for the NWS actual adoption of the codes. Because the NWS implementation dates for the proposed codes fall outside of our deadlines, and because the NWS will only deploy the codes after an extensive education and outreach program, we believe that the NWS will be able to deliver the appropriate alerts to all recipients without the need for any transition period where it issues alerts using both codes. We also believe that the deadlines we adopt today are consistent with the NWS schedule, as any extra time between our deadline and the NWS's actual use of the codes in an alert will allow EAS equipment manufacturers and EAS Participants time to resolve any technical issues that may arise.
19. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
20. As required by the Regulatory Flexibility Act of 1980, see 5 U.S.C. 603, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document.
21. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
22. The Commission will send a copy of this
23. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was included in the
24. This
25. The Small Business Administration (SBA) filed no comments in this proceeding, and there were no other comments specifically addressed to the IRFA.
26. The RFA directs agencies to provide a description of and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. The following are categories of small entities that may be affected by the rules adopted in the
27. None.
28. The RFA requires an agency to describe any significant, specifically small business alternatives that it has considered in reaching its conclusions, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.”
29. The rule changes adopted in this
30.
31. Accordingly, IT IS ORDERED that pursuant to Sections 1, 2, 4(i), 4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g), 706, and 715 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606, and 615, this
Radio, Television.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 11 as follows:
47 U.S.C. 151, 154 (i) and (o), 303(r), 544(g) and 606.
(e) The following Event (EEE) codes are presently authorized:
(f) The All U.S. State, Territory and Offshore (Marine Area) ANSI number codes (SS) are as follows. County ANSI numbers (CCC) are contained in the State EAS Mapbook.
(f) The All U.S., State, Territory and Offshore (Marine Area) ANSI number codes (SS) are as follows. County ANSI numbers (CCC) are contained in the State EAS Mapbook.
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is making a technical amendment to the Defense Federal Acquisition Regulation Supplement (DFARS) to provide needed editorial changes.
Effective August 11, 2016.
Ms. Jennifer L. Hawes, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6115; facsimile 571-372-6094.
This final rule amends DFARS 213.201(g) to add a reference to guidance available in DFARS Procedures, Guidance, and Information on the use of the higher micro-purchase thresholds prescribed in FAR 13.201(g) to support a declared contingency operation or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack. A reference to DFARS 213.201 is also added at DFARS 218.201.
Government procurement.
Therefore, 48 CFR parts 213 and 218 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(g) See PGI 213.201(g) for guidance on use of the higher micro-purchase thresholds prescribed in FAR 13.201(g) to support a declared contingency operation or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack.
41 U.S.C. 1303 and 48 CFR chapter 1.
Federal Transit Administration (FTA), Department of Transportation (DOT).
Final rule.
The Federal Transit Administration is issuing a final rule to establish substantive and procedural rules for FTA's administration of a comprehensive safety program to improve the safety of the Nation's public transportation systems. This final rule provides the framework for FTA to monitor, oversee and enforce transit safety, based on the methods and principles of Safety Management Systems.
The effective date of this rule is September 12, 2016.
For program matters, contact Brian Alberts, Office of Transit Safety and Oversight, (202) 366-1783 or
This final rule establishes substantive and procedural rules to support the Federal Transit Administrator in carrying out the Public Transportation Safety Program (Safety Program), first authorized in the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141 (2012)), and codified at 49 U.S.C. 5329. On December 4, 2015, the President signed into law the Fixing America's Surface Transportation (FAST) Act (Pub. L. 114-94 (2015)). The FAST Act made two amendments to the Safety Program that affect today's rulemaking and are discussed further, below.
Under 49 U.S.C. 5329 (Section 5329), FTA, through the authority delegated by the Secretary of the Department of Transportation, must create a comprehensive Public Transportation Safety Program. Most notably, Section 5329 provides FTA with the following explicit authorities to administer the Safety Program and to take enforcement actions:
• 49 U.S.C. 5329(f), provides FTA with the authority to inspect and audit a public transportation system; make reports and issue directives with respect to the safety of a public transportation system or the public transportation industry generally; issue subpoenas and take depositions; require the production of documents; prescribe recordkeeping and reporting requirements; investigate public transportation accidents and incidents; enter into and inspect the equipment, rolling stock, operations and relevant records of a public transportation system; and issue regulations.
• 49 U.S.C. 5329(g) authorizes FTA to take enforcement actions against a recipient of Federal financial assistance under 49 U.S.C. chapter 53 that is noncompliant with Federal transit safety law, through issuing directives, requiring more frequent oversight, imposing more frequent reporting requirements, requiring that chapter 53 funds be spent to correct safety deficiencies before those funds are spent on other projects, and withholding funds from a recipient.
• 49 U.S.C. 5329(h) authorizes FTA to impose restrictions and prohibitions on a recipient's operations, where FTA determines that an unsafe practice or condition creates a substantial risk of death or personal injury.
In the Notice of Proposed Rulemaking (NPRM), 80 FR 48794, (August 14, 2015), FTA proposed (1) to add a new part 670, “Public Transportation Safety Program,” to title 49 of the Code of Federal Regulations (CFR); (2) to formally adopt a Safety Management Systems (SMS) approach as the foundation of the Safety Program; (3) to establish substantive and procedural rules for FTA's administration of the Safety Program; and (4) to describe the contents of a National Public Transportation Safety Plan (National Safety Plan or Plan).
This final rule will add a new part 670, “Public Transportation Safety Program,” to title 49 of the CFR. In response to public comments, FTA has made a number of nonsubstantive, clarifying edits. In addition, FTA has made the following substantive changes:
1. Amended section 670.23(b) to state that FTA may withhold not more than 25 percent of a recipient's Urbanized Area Formula funds.
2. Amended section 670.27 to provide that the Deputy Administrator may issue special directives, with petitions for reconsideration going to the Administrator.
3. Amended section 670.29 to remove language stating that FTA would consider whether a recipient has complied with an advisory when taking enforcement actions.
This final rule establishes substantive and procedural rules for FTA's authority to inspect, investigate, audit, examine and test transit agencies' facilities, equipment, and records; direct or withhold Federal transit funds; and issue directives and advisories. The final rule does not impose additional costs on entities other than FTA. The costs to recipients associated with FTA's enforcement authorities are captured in the rulemakings for Public Transportation Agency Safety Plans, State Safety Oversight, and the Public Transportation Safety Certification Training Program. FTA received a number of comments on the cost assumptions in the NPRM, which are summarized in section III, below.
On October 3, 2013, FTA introduced the transit industry to fundamental changes to the Federal transit safety program authorized by MAP-21 with a consolidated advance notice of proposed rulemaking (ANPRM). 78 FR 61251. FTA issued the ANPRM to provide the public with a better understanding of FTA's proposed approach to implementing the requirements for transit asset management and safety, and to obtain stakeholder input. Throughout the ANPRM, FTA expressed its intention to adopt a comprehensive approach to transit asset management and safety that would be scalable and flexible. In addition, the ANPRM highlighted the inherent linkages between asset condition (state of good repair) and safety performance through the explanation of FTA's anticipated proposal to adopt the principles and methods of SMS as the foundation for the development, implementation, oversight and enforcement of the Safety Program.
In the August 2015 NPRM, FTA proposed a series of specific substantive and procedural rules for FTA's administration of the Safety Program. FTA took the public comments on both the ANPRM and NPRM into consideration in developing today's final rule.
FTA received comments from 118 entities, including transit agencies, trade associations, state and local governments, and private citizens. Some comments were outside the scope of this rulemaking, and some pertained to other safety rulemakings. For example, many commenters expressed support for MAP-21's safety objectives, but indicated that FTA appeared to be using language to implement SMS principles that would be more appropriate for the rail transit industry or that do not translate easily to the bus industry. To the extent these comments concerned the applicability of FTA's authority to specific types of transit agencies, please see the below discussion on “Purpose and Applicability.” To the extent these comments concerned the scalability of SMS, we believe they are more appropriately handled in the final rule concerning the Public Transportation Agency Safety Plans, which FTA plans to issue in the coming months. In general, this document does not respond to those comments that were not related to the substance of today's rulemaking; however, to assist with understanding the intent of today's rule, FTA does address some comments that are related to other safety rulemakings. Following are summaries of the comments received and FTA's responses.
A number of commenters stated that the rule would have moderate to significant direct cost implications and economic impacts, due to its detailed implementation requirements, including nationwide SMS implementation. Some commenters were concerned that the proposed rule would impose costs and administrative burdens on States and transit agencies. Some commenters suggested that the NPRM would be an “unfunded mandate” because FTA did not identify any specially designated funding that could be used by recipients towards complying with the rule. Some commenters stated that FTA had not properly accounted for the costs to recipients, including State Safety Oversight Agencies (SSOAs), to implement the other rulemakings required under 49 U.S.C. 5329. Some commenters indicated that it is difficult to evaluate and quantify the costs of implementing each component of the Safety Program rule until FTA issues all of the final rules on safety.
Several commenters requested that FTA cite the research study that provided the data and analysis supporting its assumption that the rule would not have a financial impact on the economy, States, and transit agencies. Some commenters noted that recipients would incur additional costs such as requiring more staff to implement SMS and comply with FTA's safety rulemakings. Other commenters suggested that recipients would incur costs when responding to FTA enforcement actions.
FTA has considered the comments and continues to find that this rule does not impose specific costs to recipients. Rather, this final rule establishes substantive and procedural rules to support FTA's own administration of the Safety Program. The final rule does not require recipients to take any specific action. Specific requirements for recipients, such as implementing SMS, have been outlined by FTA in the proposed and final rulemakings (as applicable) for Public Transportation Agency Safety Plans, the State Safety Oversight Program, and the Public Transportation Safety Certification Training Program. The cost projections, underlying assumptions, and research for each requirement are included in the cost benefit analysis section for each of those rulemakings.
A few commenters stated that adequate funding should be set aside, authorized, and appropriated by Congress prior to implementation of this rulemaking. Further, a few commenters indicated that funding to implement the Safety Program (including reporting requirements) should not come from existing operating and capital improvement grant funds, but rather from new and additional grant funds set aside by FTA. One commenter suggested that FTA create a special category of funding that local agencies could use to pay for the costs to mitigate risks associated with safety inspection findings. One commenter suggested that FTA designate special funding for hazard mitigation.
Some commenters noted that FTA should be aware of existing and increasing funding shortfalls already faced by many recipients, including forced service cuts, fare increases and layoffs. Commenters noted that the expected cost implications would create significant issues with their prioritization of funding.
Several commenters recommended that FTA work to secure the necessary funding at the Federal, State, and local level and that each State be allowed to distribute the funds. One commenter stated that FTA should examine the process by which other U.S. Department of Transportation agencies secure funding for their safety programs.
The Safety Program is a requirement of 49 U.S.C. 5329. Congress determines the level of funding for the Federal transit program. FTA recognizes the need for increased investments in transit at all levels of government, and recommends funding levels for the Federal transit programs through the annual congressional appropriations process.
FTA received one comment related to Tribal consultation. The commenter indicated that the worthy goal of this rulemaking can only properly be realized in Indian Country following meaningful consultation with Tribal governments and technical discussions and collaboration with the Tribal Transportation Program Coordinating Committee. The commenter noted that most Tribal transit systems operate on a very small scale, and with severe financial and administrative limitations. The commenter stated that for these practical reasons, FTA has an obligation as a prudent policy maker to engage in a meaningful consultation with Tribal nations prior to developing regulations that will apply to Tribally-operated transit systems. The commenter stated that the represented Tribes do not agree with FTA's view that Tribal consultation requirements do not apply to this rule. The commenter recommended that FTA either clarify the scope of the rule so that it does not apply to Tribes or engage in formal Tribal consultation before issuing a final rule.
FTA appreciates the comments from Tribal representatives. However, FTA disagrees that this rule will 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.” Executive Order 13175, November 6, 2000. This rule establishes substantive
Although not required to under Executive Order 13175, FTA has engaged in active consultation with Tribes in the development of this final rule. In advance of publishing an NPRM, FTA sought comment from the transit industry on a wide range of topics pertaining to the new Public Transportation Safety Program provisions authorized by MAP-21 through an ANPRM. FTA asked specific questions about how FTA should apply the new safety requirements to recipients of the section 5311 Tribal Transit Formula Program and Tribal Transit Discretionary Program. Additionally, FTA continued to engage with the industry following the publication of the NPRM through subsequent outreach efforts, including a webinar for small, rural and Tribal transit providers, which was held on October 27, 2015. FTA also held a listening session at the National Rural Transit Assistance Program Annual Meeting, which historically has been well attended by Tribal representatives.
One commenter suggested that the proposed rule would create federalism issues and asked FTA to explain why it did not believe that the rule would create federalism issues.
Pursuant to Executive Order 13132, to the extent practicable and permitted by law, a Federal agency cannot promulgate two types of rules unless it meets certain conditions. The two types of rules are:
1. Rules with Federalism Implications, substantial direct compliance costs on state and local governments, and not required by statute, and
2. Rules with Federalism Implications and that preempt state or local law.
Federalism Implications are defined as having substantial direct effects on States or local governments (individually or collectively), on the relationship between the National government and the States, or on the distribution of power and responsibilities among the various levels of government. FTA does not believe that this rule has substantial direct effects on States or local governments or the distribution of power and responsibilities among the various levels of government. Further, this rule does not preempt State or local law. This rule merely restates FTA's statutory authority to administer the Safety Program and provides processes to support FTA's administration of the Safety Program.
This section proposed that the purpose of the regulations would be to establish a Public Transportation Safety Program, and that the part would apply to all recipients of Federal transit funds.
Several commenters requested clarification regarding the applicability of the proposed rule. One commenter asked for clarification regarding the statutory authority that was referenced in the proposed purpose and applicability section.
One commenter stated that the proposed rule could be read to apply to Tribes that are direct recipients and to Tribes that are subrecipients of a State. Some commenters suggested that the rule should not apply to commuter rail operators that are subject to Federal Railroad Administration (FRA) regulations and recommended that FTA amend subpart D to clearly exclude commuter railroads. A few commenters queried whether the proposed rule would apply to bus operations. Two commenters asked if SSOAs would be considered recipients within the scope of this rule. One commenter suggested that FTA clarify whether the proposed rule would apply to third party contractors.
Some commenters indicated that the rule should allow flexibility for a State recipient to determine whether the rules should apply to subrecipients. One commenter asserted that Section 5329 allows FTA to adopt a different approach for the Enhanced Mobility of Seniors and Individuals with Disabilities Formula Program authorized at 49 U.S.C. 5310 (Section 5310) because Section 5329 specifically references the Rural Area Formula Program, 49 U.S.C. 5311, and the Urbanized Area Formula Program, 49 U.S.C. 5307, but makes no reference to Section 5310 grantees. The commenter recommended that FTA add language under section 670.1 to state that the part would not apply to public transportation systems that only receive Section 5310 funds. The commenter also recommended that FTA allow direct recipients under the Section 5310 program to lay out their approach to safety for their subrecipients in the State or Program Management Plan required under the Section 5310 program circular (C 9070 1G).
With the enactment of MAP-21, Congress directed FTA to develop a Public Transportation Safety Program for all recipients of Federal financial assistance under 49 U.S.C. chapter 53. Section 5329(a) of Title 49 of the United States Code specifically defines recipient as a “State or local governmental authority, or any other operator of a public transportation system.” Accordingly, this final rule applies to recipients of Federal financial assistance under 49 U.S.C. chapter 53, regardless of mode, including recipients of funding under 49 U.S.C. 5310 that provide public transportation, States, SSOAs, and Tribes. The rule applies to contractors who function in the capacity of the defined recipients; however, a recipient ultimately is responsible for ensuring its contractors are in compliance with the Safety Program.
FTA recognizes that some recipients, such as commuter rail operators, are subject to the safety regulatory requirements of other Federal agencies. Accordingly, a chapter 53 recipient that operates commuter rail, light rail, and a bus system will continue to have its commuter rail operations governed by the FRA, but its light rail and bus operations will be governed by 49 U.S.C. 5329 and FTA's safety regulations.
FTA has amended this section in the final rule to align with the definition of “recipient” at 49 U.S.C. 5329(a) and to clarify that the rule establishes substantive and procedural rules for FTA's administration of the Safety Program.
This section proposed the formal adoption of Safety Management Systems (SMS) as the basis for enhancing the safety of public transportation in the United States.
A number of commenters indicated support for FTA's adoption of SMS principles and methods as the basis for
Several commenters suggested that FTA adopt an approach that is simple to understand and easy to implement. One commenter expressed confidence that an SMS approach would result in improved and uniform safety standards across the country, but suggested that without further clarification from FTA, the proposed rule could unduly burden smaller public transportation systems by subjecting them to currently unknown facets of SMS that are only necessary or, in practice, applicable to the largest public transportation systems.
FTA understands those commenters that expressed concern over FTA's proposed adoption of SMS as the basis for the Safety Program. To clarify, the NPRM did not propose, nor does this final rule require a recipient to adopt SMS. On February 5, 2016, FTA issued a proposed rule for Public Transportation Agency Safety Plans that would require each recipient to develop an agency safety plan based on SMS (
FTA disagrees with those commenters who suggest that SMS is not a practical approach for the Nation's diverse transit industry. FTA is taking a risk-based, proactive approach to implementation of the Public Transportation Safety Program. Specifically, the SMS pillars of safety risk management and safety assurance are designed to assist in identifying in advance where potential safety risks reside, and developing and implementing mitigations (rules, directives, guidance, best practices) that would prevent the likelihood and minimize the severity of the risk. FTA is committed to developing, implementing, and consistently improving strategies and processes to ensure that transit achieves the highest practicable level of safety. SMS is FTA's approach to achieving this goal by building a 21st-century safety regime that is flexible, scalable, and responsive to emerging safety issues.
FTA has revised this section in the final rule to clarify that the policy statement specifically applies to actions undertaken by FTA.
This section included proposed definitions for terms used in the NPRM.
Commenters generally were concerned that any words or language intended to describe an event or circumstance that would trigger an enforcement action under the proposed rule must be defined clearly and concisely so that all affected recipients are treated equally. Some commenters felt that if the terms were left to the discretion and interpretation of the investigator or FTA representative handling the issue, there would be the potential for an uneven application of the regulation across recipients and subrecipients. In light of this concern, a number of commenters suggested that FTA clarify some of the proposed definitions, including, specifically, Accountable Executive; pattern or practice; audit; examination; inspection; investigation; corrective action plan; advisory; National Public Transportation Safety Plan; recipient; and testing.
In general, FTA appreciates the concerns regarding some of the proposed definitions, and the requests for additional definitions. As appropriate, FTA has incorporated into this rulemaking definitions that appear in other Section 5329 rulemakings, including the definition of hazard. FTA made changes to the following definitions to clarify their meaning: Advisory; audit; corrective action plan; directive; examination; inspection; pattern or practice; and State Safety Oversight Agency.
Several commenters asked whether an “Accountable Executive” would be an agency CEO or general manager. Some commenters also asked for clarification on the qualifications required to fulfill this role, stating that incumbents with this responsibility should possess comparable levels of competence, experience and authority to ensure consistency across the industry. One commenter requested that FTA revised the definition to state that a State Department of Transportation (State DOT), by virtue of providing funds, advice, or administrative planning or support to a subrecipient agency, is not an Accountable Executive with respect to that agency. Finally, one commenter asked FTA to define “Transit Asset Management Plan,” which appears without elaboration in the definition of Accountable Executive.
A number of commenters were concerned that the definition of “pattern or practice” is unclear, and does not explicitly define what constitutes a “finding.” In particular, commenters were concerned with the lack of specificity on what minimal and maximal time span between findings would constitute a pattern; whether findings would be limited to only violations found during one investigation or over multiple investigations; and whether findings must be related or be of some specific but undefined level of severity. Commenters suggested that “finding” should be included as a defined term, to clarify how the results of inspections, investigations, audits, examinations and testing relate to “findings” and whether the conclusions from inspections, investigations, audits, examinations and testing constitute “findings” or if a “finding” is something pursuant to a more specific process or particular procedure. Some commenters suggested that pattern or practice should be more
Several commenters stated the differences between the definitions of “examination,” “inspection,” “audit” and “investigation” were minor and not well-defined, particularly the differences between examination and inspection. Some questioned why an inspection might lead to a finding of a pattern or practice of safety violations, but examinations and audits would not. One commenter suggested deleting “examination” since it was very similar to “inspection.”
With respect to the definition of “pattern or practice” and in general response to the proposed rule's sections on enforcement actions, several commenters asked FTA to define “unsafe condition or practice” and “safety violation.” Some also suggested adding the term “serious” or “serious safety violation” as a definition to clarify what constituted “serious” safety violations, and what the relative and actionable difference was between a “serious” safety violation and a safety violation that was not “serious.”
Some commenters stated that although the definition of “recipient” implies inclusion of SSOAs as recipients of Chapter 53 funding, the description of actual affected entities throughout the NPRM suggested that it applied to public transit agencies and not SSOAs. Those commenters asked for clarification on whether SSOAs were implicitly included in the definition. Those commenters further stated that if FTA intended to include SSOAs, there would be a disincentive for SSOAs to participate in the formula grant program, and recommended that FTA explicitly exclude SSOAs from the definition of “recipient.”
A few commenters asked FTA to define what it meant by “more frequent oversight” as part of the suite of enforcement actions that FTA could initiate under section 670.21.
One commenter asked if the definitions from FTA's SSO rule, codified at 49 CFR 674, of “reportable incident” and “occurrence” would be incorporated into the current proposed rule.
A few commenters asked FTA to enhance the existing “corrective action plan” definition to capture the broader processes or mechanisms associated with the ongoing management of corrective action plans by recipients and oversight agencies.
One commenter asked for definitions of the following individual terms: “hazard”; “assessment”; “evaluation”; “light rail” and “heavy rail”; “enforcement”; “employee accident and injury”; and “near miss”. Commenters also suggested that FTA define the following additional terms: analysis; safety deficiency; noncompliance; public transportation system; and state of good repair.
FTA does not agree that it needs to define the term “public transportation system.” FTA believes that it is clear that the term means a transit system operated by a recipient of funds under 49 U.S.C. chapter 53 and “recipient” is a defined term under the rule.
FTA does not agree that it should define the term “safety deficiency.” What amounts to a “safety deficiency” will vary on a case-by-case basis.
As required by 49 U.S.C. 5326(b)(1), FTA has defined the term “state of good repair” in the Transit Asset Management final rule, which was published on July 26, 2016. (81 FR 48889).
In this final rule, FTA has changed the heading of this subpart from “Compliance Assessments” to “Inspections, Investigations, Audits, Examinations and Testing” to better describe the subject matter of this subpart.
In this final rule, FTA has changed the title of this section from “Inspections, Investigations, Audits, Examinations and Testing” to “General.” In the NPRM, this section set forth FTA's statutory authority to conduct inspections, investigations, audits, examinations and testing. In the NPRM, FTA asked how it should define “reasonable time and manner” for entering into and inspecting a recipient's equipment, facilities, rolling stock, operations, and relevant records.
With respect to “reasonable time,” commenters suggested: (1) At least forty-eight hours; (2) twenty-four hours; (3) a few days (4); five days; (5) thirty days; and (6) sixty days. A few commenters also recommended that FTA adopt the investigation processes currently used by other Federal agencies. A few commenters indicated the need for more clarity and requested that FTA propose specific language to define the terms “reasonable time” and “reasonable manner.” One commenter requested clarity regarding “written notice” as it is used in section 670.11(b). Another commenter asked what would trigger an inspection: passage of time; a particular incident; or an industry-wide issue. The commenter stated that uncertainties would lead to confusion about what is expected as transit agencies seek to accommodate FTA's efforts and requirements. Another commenter requested that FTA define the SSOA's role and responsibilities when FTA takes enforcement actions.
One commenter stated that FTA should clarify whether it has the authority to enter a transit property even without the consent of the recipient. The commenter noted that even with written notification, a recipient may object to external auditors entering its property for various reasons, including insufficient training (such as roadway worker protection) and administrative issues, such as schedule conflicts. Other commenters requested that FTA clarify the following: (1) Whether its representatives must be escorted by authorized transit agency representatives while on the property for the purposes of conducting an audit or inspection; and (2) whether FTA representatives must receive agency-required safety training (such as roadway worker protection) in order to enter a rail right-of-way. Several commenters noted that FTA should require its representatives to follow all of a recipient's applicable safety rules and procedures during the course of conducting an audit or inspection.
Regarding the process for providing notice, some commenters stated that FTA should provide advance written notice to a recipient stating the purpose for the inspection. Several commenters noted that the written notice should reference the specific information that FTA would be seeking. A few commenters recommended that FTA also provide notice to an SSOA prior to inspecting a rail transit agency. Many commenters suggested that the written notice should be directed to a recipient's general manager, chief executive officer, or other Accountable Executive, with a copy provided to the SSOA. A few commenters stated that notification should include an official letter emailed to the Accountable Executive or their designated point of contact and a phone call. Several commenters suggested that FTA require some form of delivery/read receipt to confirm a recipient's receipt of the notification.
One commenter recommended that FTA work cooperatively and collaboratively with a recipient to establish an agenda for the site visit. Other commenters acknowledged that emergency situations would eliminate the need for notification. Two commenters noted that there should be limits on the number of times FTA can audit a transit agency unless there are significant safety findings during an audit or investigation. One commenter indicated support for unannounced FTA inspections, testing, and records reviews, but noted that the Federal process should not prevent the transit agency from providing its routine transit service safely, nor put any of the FTA, SSOA, transit agency personnel, or members of the public at risk during the process.
Some commenters recommended that Federal personnel should receive the recipient's approved track safety training prior to conducting activities within a recipient's transit system. One commenter stated that Federal personnel should provide a recipient with details of their safety training and certification.
One commenter stated that a final rule explicitly should allow host agencies to determine reasonable and safe options for granting an FTA request to inspect or test equipment, or to enter restricted or otherwise potentially hazardous areas. Additionally, the commenter suggested that a final rule should allow the host agency's lead representative to call an emergency “stop” to activities, at his or her discretion, for fire-life-safety reasons, if unsafe behavior is observed that could potentially place a person in danger, or if required personal protective equipment is not worn or not used appropriately.
Commenters requested additional details regarding how, why and when FTA would enter a public transportation system to conduct a safety inspection. Commenters also requested that FTA define its role, responsibilities and authority in the testing and inspection of a public transportation system's equipment, facilities, rolling stock and operations.
A number of commenters questioned how FTA and SSOAs would coordinate activities with a rail transit agency when FTA exercises its authority under the section. Some commenters recommended that FTA develop program standards for conducting activities under the section and submit them for public comment. Several commenters also noted that the proposed regulatory text did not include notification to the State when FTA would notify a recipient of its intent to exercise authority under the section. A few other commenters recommended that FTA focus its oversight on rail safety, asserting that bus-only systems are already safe.
One commenter asked how FTA's inspections, oversight, safety standards, or directives would complement, supplement, or possibly conflict with those of SSOAs. The commenter recommended that FTA clarify the
Commenters also asked whether FTA would delegate its authority to carry out this section to an SSOA. Similarly, a commenter stated that since SSOAs and FTA are safety oversight partners, there should be a mechanism for FTA to work with an SSOA and factor SSOA findings into any FTA enforcement action. The commenter recommended that there should be a detailed process for monitoring corrective actions between FTA and SSOAs.
FTA also received comments regarding how this section aligned with FTA's available online SMS Awareness training. One commenter noted, and asked for an explanation of, an apparent discrepancy between FTA's SMS Awareness training, which specifically says that investigations are not a function of SMS, and the NPRM, which indicates that the inspections, investigations, audits, examinations and testing are directly a part of an SMS approach.
Several commenters noted that the SMS reviews and audits should be part of the triennial or state management reviews, unless there has been an accident that the National Transportation Safety Board (NTSB) is investigating. These commenters recommended that FTA define the specific types of incidents or complaints that could result in an FTA audit or investigation. Another commenter suggested that FTA state the frequency it proposes to inspect, audit or perform a “compliance assessment” of each property. This commenter also recommended that for efficiency purposes, FTA's inspection cycle should correspond with the SSOA triennial reviews of local rail transit operators. Commenters stated that if a property is undertaking a robust SMS, then the FTA assessment cycle should be longer. For clarity, commenters recommended that FTA include language which describes the new compliance assessments contemplated by this rulemaking, and describes how they will correspond with existing oversight programs and grant management procedures.
With regard to proposed section 670.11(b), commenters queried whether the prescription of “recordkeeping and reporting requirements” was meant to apply solely to the production of documents for the purposes of the inspection or audit at hand, or if FTA would be able to direct agency-wide recordkeeping and reporting practices at any time.
FTA appreciates those commenters who responded to our request for comment on how “reasonable time” and “reasonable manner” should be defined for the purpose of FTA entering into and inspecting equipment, facilities, rolling stock, operations and relevant records. Upon consideration of the comments, FTA has decided not to define “reasonable time” or “reasonable manner” in regulatory text. FTA does not believe that narrowly defining “reasonable time and manner” would enable FTA to sufficiently oversee the safety of our Nation's transit systems. For instance, there are a number of scenarios that may require FTA to enter into and inspect a recipient's property with minimal notification.
Accordingly, under the final rule, the Administrator has discretion in determining what amounts to a reasonable time and manner, on a case-by-case basis. FTA believes it should have flexibility with regard to how it will notify a recipient. Thus, the medium utilized to convey notice should not be limited by regulatory text. FTA will use reasonable means of communication to include telephonic and electronic media. FTA will work with transit systems and appropriate State entities to ensure that adequate notice is provided so that Federal personnel do not unduly impede operations.
FTA does not agree with those commenters who indicated that a host agency should be able to place limitations on FTA's exercise of its statutory authority when conducting compliance activities associated with this rule. Further, FTA does not agree with commenters who suggested that it should prescribe through regulation how and when it would conduct safety inspections, investigations, audits, examinations and testing. FTA's actions will be based on consideration of particular sets of facts. FTA does not believe that limiting the scope of the actions it has the authority to take via rulemaking contributes to improving public transportation safety. Relatedly, FTA does not believe it is appropriate to define through regulation its role, responsibilities, and authority in the inspecting, investigating, auditing, examining, and testing of a public transportation system's equipment, facilities, rolling stock and operation, as each activity may require flexibility on behalf of FTA and the recipient.
FTA agrees with those commenters who suggested that FTA and its designees comply with a recipient's safety and training protocols and requirements. FTA will coordinate with recipients to ensure its activities are carried out in a safe manner. In addition, when FTA conducts safety activities at a rail transit agency, FTA will coordinate with the relevant SSOA as necessary and to the extent practicable. However, it may not always be feasible for an FTA representative to undergo agency-specific training or verify his or her training to a recipient before conducting safety activities on behalf of FTA under this rule.
In general, FTA disagrees with those commenters who suggested that FTA provide more prescriptive processes. FTA believes that a certain level of flexibility is necessary in order for the agency to effectively administer the Safety Program. For example, FTA does not believe that it should be limited to only engaging in activities under this section upon the consent of a recipient. To do so would be unreasonable, considering there will likely be occasions when inspections and investigations are required when FTA becomes aware of an accident. In addition, FTA does not agree with commenters who suggested that FTA formally establish a schedule for conducting activities under this section or that FTA align its activities under this section with existing audit processes. FTA may establish a formal schedule for conducting activities under this section in the future, but a schedule is not appropriate for this rule.
In exercising its enhanced statutory authority for safety oversight, FTA recognizes the critical role of State and local safety oversight partners. To that end, FTA will work with SSOA and transit system personnel to accommodate operational and staffing challenges that may occur as it exercises its authority. However, FTA does not agree that it should delegate its authority to the SSOAs. In response to the comment regarding SMS Awareness training, FTA notes that implementation of SMS principles in no way contradicts or conflicts with its authority to engage in inspections, investigations, or other regulatory compliance processes.
One commenter asked whether the proposed provision to impose more frequent reporting requirements applied to documents requested for purposes of an audit or inspection, or if FTA would be able to direct agency-wide recordkeeping and reporting practices at
FTA made a few nonsubstantive, clarifying edits to this section in the final rule. In addition, FTA eliminated the 30-day response timeframe for document requests because there may be instances where FTA needs requested information more quickly. Also, as stated above, FTA refined the notice provision in this section to provide that the Administrator will decide on a case-by-case basis what “reasonable time and manner” would be for FTA to enter into and inspect or test equipment, facilities, rolling stock, operations, and relevant records.
This section proposed procedures for a recipient to request confidential treatment of any record filed with or otherwise provided to FTA in connection with its administration of the Safety Program.
Many commenters questioned the authority by which FTA would be able to protect information it received from recipients from public disclosure. Commenters asked how FTA would ensure the integrity of confidential information during all phases of the reporting and information retention process. A few commenters stated that the proposed regulatory text was insufficient to provide automatic blanket protection for any information pertaining to public safety or that is safety-critical or safety-sensitive. Several commenters stated that FTA's proposed confidentiality clause would add nothing to existing law, and only narrow the exemption window through overly technical requirements which would allow automatic full disclosure of potentially security sensitive information if a transit agency accidentally neglects to submit the correct format.
A few commenters suggested that FTA clarify that the Freedom of Information Act (FOIA) exemptions apply to all recipients, whether or not they are subject to FOIA. One commenter further noted FTA should explicitly recognize confidentiality provisions under other FOIA-like policies that are adopted by transit agencies. However, a number of commenters asserted that State law could overrule Federal confidentiality protection, and that the language of the proposed rule was not sufficient to prevent documents from being discovered in a civil action or being disclosed in response to a public records request at the State level. Commenters suggested that FTA should recognize that States are unable to afford transit agencies this protection, even if FTA determines a record is confidential. The commenters recommended that FTA provide protection for any sensitive or confidential information, and ensure that Federal confidentiality supersedes any State disclosure requirements.
Another commenter asked that FTA describe the objective process FTA would use to determine if records are subject to public disclosure. One commenter was concerned that a recipient may use the provision to report directly to FTA and bypass and withhold information from its SSOA, which is obligated (as a State/local agency) under State law to disclose any investigative reports or safety information.
A few commenters expressed concern that FTA proposed to reserve the right to make its own final determination of whether a confidentiality request would be granted. Commenters asked for clarification on the circumstances under which FTA would not keep records confidential, as requested. The commenters also stated such authority to make final determinations would overrule existing State laws and authorities, as well as Sensitive Security Information (SSI) guidelines.
One large transit agency commented that 18 U.S.C. 1905 applies only to Federal employees or Federal agencies, and not to transit agencies since they are not Federal entities. The commenter suggested that this section should therefore include clarification that the disclosure provisions of 18 U.S.C. 1905 will apply to transit agencies that submit records pursuant to a request for confidentiality, even though they are not Federal entities. Another commenter stated that since an agency is required to submit any record for which it is seeking confidential status, the act of that submittal destroys or constitutes a waiver of a transit agency's right to confidentiality of records for which it claims attorney-client or work product privilege. The commenter suggested that a transit agency could instead provide pertinent information regarding date, time, location and a brief explanation of the basis for asserting attorney-client or work product privilege.
Several commenters suggested that FTA allow a transit agency 30 working days to evaluate and respond to a decision by the Administrator to deny a confidentiality request. Commenters recommended that a final rule provide a reasonable appeal mechanism for transit agencies that disagree with the Administrator's decision to release records. Other commenters recommended that the minimum amount of time given to an agency to respond to an FTA denial of confidential treatment should be changed to at least 10 days, due to the harm that such release could cause.
To clarify, the proposed confidentiality provision was not intended to protect information from public disclosure. The provision was intended to provide recipients with the opportunity to alert FTA of the alleged confidentiality of a requested record. Unlike other Federal safety regulatory agencies, FTA does not have statutory authority to protect safety-related information. However, under the State Safety Oversight (SSO) rules at 49 CFR 674.27(a)(7), an SSOA's program standard must include procedures for protecting the confidentiality of investigation reports.
Documents submitted to FTA are subject to FOIA and are generally releasable to the public upon request. FTA may maintain the confidentiality of accident investigations, incident reports, and other safety-related information to the maximum extent permitted under Federal law, including the nine exemptions under FOIA. FTA will evaluate whether or not a document may be withheld from public disclosure under the Department of Transportation's FOIA rules at 49 CFR part 7.
FTA agrees that its confidential treatment of information would not preempt State law; therefore, recipients should exercise their use of this provision accordingly.
FTA made nonsubstantive, clarifying edits to this section in the final rule.
This section of the NPRM set forth the Administrator's enforcement authorities under 49 U.S.C. 5329.
In general, FTA's responses to comments received on this section are addressed in other sections throughout the preamble. For example, comments related to reporting requirements are addressed in the response to comments under section 670.11, above. Responses to comments related to withholding of funds immediately follow this section, below.
FTA has made two changes to this section as a result of FAST Act amendments made to 49 U.S.C. 5329. First, FTA revised section 670.21(e) to limit withholding of a recipient's 49 U.S.C. 5307 funds to no more than twenty-five (25) percent. Second, FTA added a new section 670.21(g) to explicitly incorporate into this rule FTA's authority to issue restrictions and prohibitions on a recipient's operations, if through testing, inspection, investigation, audit or research the Administrator determines that an unsafe condition or practice, or a combination of unsafe conditions and practices, exist such that there is a substantial risk of death or personal injury. The language in the rule is identical to the language in the statute. Further, the proposed rule included the authority for FTA to issue special directives in the event an unsafe practice or condition caused an emergency situation involving a hazard of death, personal injury, damage to property or equipment, or significant harm to the environment. The authority under new section 670.21(g) may be considered a specific type of special directive, applicable in certain circumstances, and thus is materially related to FTA's proposal to issue special directives. Moreover, FTA finds good cause to include reference to its authority to issue restrictions and prohibitions in the final rule. In the NPRM, section 670.21(a)-(f) included a list of the authorities provided to FTA by Congress in MAP-21 to carry out the Safety Program. In this final rule, FTA has added a new subsection 670.21(g) which merely adds to the list of authorities provided to FTA under MAP-21, to reflect the authority to issue restrictions and prohibitions that was added under the FAST Act. Accordingly, FTA has “good cause” under the Administrative Procedure Act (5 U.S.C. 553(b)) to finalize these provisions at this time because additional public comment is “unnecessary” as the rule merely restates the statutory provision.
This section proposed procedures for FTA to direct the use of Chapter 53 funds where safety deficiencies are identified by the Administrator or an SSOA. This section also proposed procedures for withholding of Chapter 53 funds from a recipient or State for non-compliance, where the Administrator determines that there has been a pattern or practice of serious violations of the Safety Program or any regulation or directive issued under those laws for which the Administrator exercises enforcement authority for safety.
Many commenters expressed concern about the potential loss of Federal funding as a result of safety violations, as many safety violations may be due to preexisting and chronic underinvestment, with any loss of funding resulting in a worsening of transit agencies' financial situations and greater safety deficiencies. In addition, several commenters stated that the connection between States, SSOAs and transit agencies was unclear, and that the NPRM did not explain how a State would be held responsible for a safety deficiency at a transit agency. These commenters asked that the rule clarify what is meant by a State, and to clearly differentiate how the notification, appeal, and withholding actions and procedures would affect the various entities.
One commenter stated that SSOAs should not be subject to this section because, although the definition of “recipient” in section 670.5 implies inclusion of SSOAs, the description of actual affected entities throughout the NPRM instead suggests only public transit agencies. The commenter suggested that SSOA funding be excluded from the definition of “recipient” under section 670.5.
Several commenters expressed concern that funding could be withheld from the entire State or SSOA, due to the action (or inaction) of a single subrecipient, thus penalizing all the subrecipients in the State. The commenters asked that FTA add language to section 670.23 to either explain the rationale and process for holding a State liable for the deficiencies of a particular transit agency, or add language which would limit enforcement actions to the particular subrecipient instead of the entire State. Similarly, one commenter stated that there should be a process to ensure that a rail transit agency in one State does not cause FTA to withhold chapter 53 funds from an SSOA or rail transit agency in another State.
Several commenters stated that section 670.23(b)(3) only allows, but does not compel, FTA to consider a recipient's response to a notice of violation. Commenters suggested that FTA should have to consider a recipient's response to a notice of violation. These commenters also stated that this section did not adequately provide an opportunity for notice and comment. In addition, commenters stated that this section did not provide a sufficient process for a transit agency to appeal an erroneous notice of violation, which could result in a significant loss of funding. One commenter further stated that withholding of funds should be considered only after consultation with the SSOA and after a rail transit agency has been given ample opportunity to address the safety concern and respond to FTA. One commenter suggested that FTA should not withhold funding from a recipient who corrects an identified deficiency by implementing FTA's required remedial action and mitigates the deficiency within the 90 days following the initial notice of violation.
Some commenters stated that because of the similarities between this section and section 670.27, special directives should be invoked as a remedy for program deficiencies before withholding funds, and that this sequence should be clearly required in the rule. Another commenter requested that section 670.23 be incorporated into section 670.27, due to its more developed appeal process, so that transit agencies would have more recourse in the case of an FTA decision to withhold funding.
Several commenters asked what would happen if FTA failed to adhere to the established 30-day decision timeline under section 670.23(b)(3) and queried whether the violation would be automatically dismissed if the deadline passed or whether FTA would be subject to consequences for missing the deadlines. One commenter stated that an FTA decision to redirect or withhold funds amounts to an unfunded mandate.
FTA understands that many transit operators, especially smaller transit operators, have limited financial resources. However, FTA believes that the decision to withhold funds should be at the discretion of the FTA Administrator, in consideration of the nature and severity of the safety violation at issue. FTA may consult with an SSOA before withholding any funding or issuing a violation to a rail transit agency. However, FTA does not believe that it needs to prescribe such a process in regulatory text.
FTA will not hold an SSOA directly accountable for a safety deficiency at a rail transit agency. However, FTA may hold an SSOA accountable for failing to adequately oversee a rail transit system. Accordingly, FTA does not believe that SSOAs should be excluded from this rule. FTA agrees that all subrecipients in a State should not be held accountable for one subrecipient's actions, and we have removed the word
In the NPRM, FTA proposed a process for a recipient to respond to a notice of violation. FTA proposed to issue a response to the recipient within 30 days of its receipt of the recipient's response. FTA has changed “may” to “shall” to indicate the Administrator will consider a recipient's response. FTA intends to make a decision within 30 days of receiving a response from a recipient, but FTA will not automatically dismiss violations if it misses the deadline.
FTA's enforcement tools under the Safety Program include directing the use of funds, withholding funds, and issuing directives. Intentionally, FTA did not define specific circumstances that would trigger FTA to take one action over another or prescribe specific timeframes that a recipient would need to comply with a special directive. An enforcement action that may be appropriate to address one recipient's safety issue may not be appropriate to address the same issue at another recipient's transit system. FTA's recipients range in diversity of mode, operating environment, sophistication, expertise and resources. FTA believes it is important to establish and implement the Safety Program in a manner that is both scalable and flexible. FTA does not agree that requiring that funding be redirected or withheld is an unfunded mandate.
In the final rule, FTA has reorganized this section for clarity. In addition, FTA has revised this section to limit the amount that may be withheld to not more than 25% of section 5307 funds in accordance with 49 U.S.C. 5329(g).
In section 670.25, FTA proposed procedures for the issuance of a general directive by the Administrator. In section 670.27, FTA proposed procedures for the issuance of a special directive to one or more named recipients.
FTA received a number of comments related to the proposed rule for general and special directives. Some commenters asked for clarifications on the proposed procedures for both types of directives. Some comments requested that FTA specify which directives require general manager and Board response, stipulate timelines for response due dates, and clarify the notice and appeal processes. One commenter stated that there was no process identified for FTA to notify a recipient in a timely way that its response to a directive is satisfactory, which could delay a recipient's implementation of a corrective action and put the transit system in a position of increased liability or undermine public confidence. One commenter noted that State and local agencies would need time to implement a general or special directive and recommended that FTA provide a time period for implementation.
Several commenters noted that the processes for responding to or appealing the FTA Administrator's decisions under part 670 are inconsistent depending on whether it is a general directive, a special directive, or a withholding of funds. One commenter suggested that FTA devote one section solely to responding to or appealing the Administrator's decisions.
A number of commenters noted that the rule did not define emergency situations that might give rise to the issuance of a general directive. Commenters suggested that FTA define “emergency situation.”
Some commenters stated that FTA did not have the authority to take enforcement action because of a “significant harm to the environment.”
One commenter requested that FTA provide specific details about the enforcement action that could be taken under each section. A commenter asked how FTA would identify the need for a general or special directive and how FTA would ensure that qualified persons were involved in the development of a directive.
One commenter noted that under proposed section 670.27(d), a recipient would be required to “observe” a special directive during FTA's review of a petition for reconsideration. The commenter also noted that proposed section 670.27(f)(4) did not provide a timeframe from when FTA would make a decision to when a recipient would be notified of FTA's decision, during which time a recipient would still be required to “observe” the special directive. The commenter asked what “observe” meant and how FTA would enforce the provision if a recipient could not meet the requirements of a special directive.
One commenter suggested that petitions for reconsideration should, at a minimum, be handled by the original authority, a peer, or a superior authority, instead of the FTA Chief Counsel, asserting that the Chief Counsel should not be placed in the position of appellate authority over his or her Administrator.
Intentionally, FTA did not define specific circumstances that would trigger FTA to take one action over another or prescribe specific timeframes that a recipient would need to comply with either a general or special directive. As stated above, an enforcement action that may be appropriate to address one recipient's safety issue may not be appropriate to address the same issue at another recipient's transit system. FTA's recipients range in diversity of mode, operating environment, sophistication, expertise and resources. FTA believes that it is important to establish and implement the Safety Program in a manner that is both scalable and flexible.
In section 670.25, FTA proposed to issue general directives that could apply to all recipients or a subset of recipients and that would be effective upon notice provided by the Administrator in the
Upon further consideration, FTA has determined that general directives and the
Special directives are the more appropriate tool to address emergency situations. In the NPRM, FTA proposed to issue a special directive to one or more named recipients to address a safety issue specific to the recipient's transit systems. A special directive would become effective upon direct notice from FTA to a recipient. FTA has retained the NPRM provisions related to when FTA would issue a special directive.
FTA agrees with the commenter who suggested that FTA's Chief Counsel should not be placed in the position of appellate authority over the Administrator. Under this rule, the Deputy Administrator will issue special directives, and the Administrator will
Because FTA will issue special directives when it FTA finds a substantial risk of death or personal injury, or damage to property or equipment, a recipient will be required to “observe” the actions required under a special directive while its petition was being reviewed by the Administrator. Within this context, “observe” means that the recipient must implement the requirements under the special directive during the review period. FTA will provide guidance to a recipient on what specific steps need be taken to implement the requirements of the special directive during the review period.
FTA agrees with commenters who suggested that FTA not take action under this rule to address a “significant harm to the environment.” FTA's primary goal under the Safety Program is to ensure the safety of passengers and transit workers. Readers should note, however, that FTA does have the authority to address environmental issues related to a public transportation system that have an impact on passenger or worker safety. FTA has revised the final rule to remove the language related to harm to the environment.
This section described how the Administrator would issue advisories, which would recommend corrective actions to resolve or mitigate an unsafe condition.
Several commenters noted that, as proposed, compliance by a recipient with an advisory would be discretionary. Commenters also noted that advisories issued by other Federal agencies are not discretionary and include required actions. Accordingly, a commenter suggested that FTA use “bulletin” instead of “advisory.”
Commenters asked why FTA did not propose to submit an advisory to a public notice and comment process similar to what was proposed for a general directive. One commenter recommended that FTA establish a formal process for issuing advisories. Several commenters requested clarification on how an advisory would be issued and whether a recipient would have an opportunity to respond.
There were a number of comments related to proposed section 670.29(b). In that section, FTA proposed that the Administrator could take a recipient's noncompliance with an advisory into consideration when deciding to take an enforcement action. One commenter noted that this section was inconsistent with SMS. The commenter noted that each agency would determine whether or not the hazard or risk referenced in the advisory was relevant, and if so, determine an appropriate strategy to reduce risk to an acceptable level, which could include an alternative mitigation than what was recommended in the advisory.
Some commenters asked whether the subject matter of an advisory could lead to the issuance of a special directive. One commenter asked whether FTA planned to issue civil penalties against a recipient which did not comply with an advisory, and noted that other U.S. DOT administrations do not assess civil penalties under such circumstances.
Several commenters sought clarification on the difference between an advisory and a directive. One commenter suggested that FTA strike the section on advisories because FTA should address unsafe conditions with a general directive.
In the NPRM, FTA proposed that advisories would include recommended actions. Directives require a recipient to take mandatory action to mitigate a specific safety risk. FTA believes it is important to establish several tools that may be used to address different levels of safety risks, from low to high. An advisory would be used to address lower level safety risks or in situations where FTA lacks sufficient data to accurately assess the risk.
Commenters were accurate in their assertions that “compliance” with an advisory would be at a recipient's discretion. FTA agrees that each agency should determine whether or not the hazard or risk addressed in an advisory is relevant to its system and determine appropriate mitigations. Due to the nature of an advisory, a recipient need not “comply” with an advisory, but instead would decide whether or not to adopt the recommended actions. Accordingly, FTA has revised this section in the final rule to remove the language stating that the Administrator would take a recipient's noncompliance with an advisory into consideration when taking enforcement actions. FTA is aware that other Federal agencies use advisories to impose mandatory requirements on their regulated communities. FTA has elected to impose mandatory requirements through the use of directives, and recommendations through the use of advisories.
FTA does not have the authority to issue civil penalties. However, FTA could issue a directive subsequent to an advisory if FTA finds that the hazard or risk identified in the advisory requires further mitigation.
FTA does not agree that it should submit mere recommendations through the public notice and comment process or establish another formal process for issuing an advisory. FTA will notify recipients of an advisory by publishing a notice in the
This section described the statutory mandates and proposed components of a National Public Transportation Safety Plan (National Safety Plan).
Several commenters supported FTA's proposals for a National Safety Plan. Some commenters requested additional information and clarification about the contents of a National Safety Plan in order to be able to comply with the Plan's requirements. One commenter asked how FTA would update a National Safety Plan and whether each update would be subject to notice and comment.
One commenter stated that a National Safety Plan must be implemented via rulemaking if SSOAs would be expected to ensure that rail transit agencies are complying with the Plan. The commenter stated that a National Safety Plan should not be updated periodically because any changes may require an SSOA to establish new rules, which would be cumbersome, time consuming and expensive. Further, the commenter noted that many small transit providers adopt rules, policies and safety plans through Board actions. Therefore, if a National Safety Plan is changed periodically, transit agencies would need several months to comply with any changes, and to allow an opportunity for comment.
One commenter requested that FTA coordinate the development of safety criteria and standards with the other U.S. DOT modal administrations, such as the FRA, to avoid conflicting standards. One commenter encouraged FTA to coordinate with transit agencies in the development of standards and criteria. The commenter suggested that
Several commenters noted that it was difficult to comment on a National Safety Plan because FTA had not published final rules for other components of the Public Transportation Safety Program. Some commenters requested additional information from FTA on the nexus between state of good repair and safety.
One commenter suggested that FTA adopt the framework for a National Safety Plan that was recommended by the Transit Advisory Committee for Safety (TRACS). The commenter noted that the proposed rule included a few of the TRACS recommendations, but would benefit from a more detailed description of the necessary elements that contribute to a more robust framework.
Several commenters suggested other issues that FTA should address in a National Safety Plan, including employee issues such as driver assaults, restroom breaks, and blind spots. To ensure the safety of transit operators, a commenter recommended that a National Safety Plan require that buses be equipped with clear plastic partitions, a driver side door or window, and an emergency alarm. A commenter also recommended that a National Safety Plan require increased use of wayside fare collection, which the commenter suggested is a safer means to collect payment. Another commenter stated that a National Safety Plan must address blind spots, which make safe operation of transit buses difficult. Other commenters suggested that a National Safety Plan address pedestrian and bicycle safety.
FTA intends for the National Safety Plan to serve as both the primary tool for FTA to communicate with the transit industry about its safety performance, and as a repository of guidance, best practices, technical assistance, tools and other information. FTA believes that a flexible approach to implementing a National Safety Plan would be the most effective way to disseminate information. Therefore, FTA intends to publish proposed substantive updates to the National Safety Plan, such as new performance criteria, for public notice and comment, but does not believe that the National Safety Plan needs to be a rule. FTA will incorporate guidance, technical assistance, and other tools into the Plan as they become available.
In the NPRM, FTA proposed the initial contents of a National Safety Plan. The list of proposed contents was not exhaustive. On February 5, 2016, FTA published its first proposed National Safety Plan for public notice and comment.
FTA revised this section in the final rule to reflect changes to 49 U.S.C. 5329(b) as amended by the FAST Act, which require a National Safety Plan to include standards to ensure the safe operation of transit systems.
Executive Orders 12866 and 13563 direct Federal 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. Also, Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. As stated above, FTA does not believe that this rule imposes direct costs on entities other than FTA.
FTA has determined this rulemaking is a nonsignificant regulatory action within the meaning of Executive Order 12866 and is nonsignificant within the meaning of the U.S. Department of Transportation's regulatory policies and procedures. FTA has determined that this rulemaking is not economically significant. The rule will not result in an effect on the economy of $100 million or more. The rule will not adversely affect the economy, interfere with actions taken or planned by other agencies, or generally alter the budgetary impact of any entitlements, grants, user fees, or loan programs.
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354; 5 U.S.C. 601-612), FTA has evaluated the likely effects of the rule on small entities, and has determined that they will not have a significant economic impact on a substantial number of small entities.
This rule will not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 109 Stat. 48).
FTA has analyzed this rule in accordance with the principles and criteria established by Executive Order 13132, and determined that this rule will not have sufficient Federalism implications to warrant the preparation of a Federalism assessment. FTA has also determined that this rule will not preempt any State law or State regulation or affect the States' abilities to discharge traditional State governmental functions. Moreover, consistent with Executive Order 13132, FTA has determined that the rule does not impose direct compliance costs on State and local governments.
The regulations effectuating Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this rulemaking.
This rulemaking will not impose additional collection requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501,
The National Environmental Policy Act of 1969, 42 U.S.C. 4321,
This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (March 15, 1998), Governmental Actions and Interference with Constitutionally Protected Property Rights.
Executive Order 12898 (February 8, 1994) directs every Federal agency to make environmental justice part of its mission by identifying and addressing the effects of all programs, policies, and activities on minority populations and low-income populations. The USDOT environmental justice initiatives accomplish this goal by involving the potentially affected public in developing transportation projects that fit harmoniously within their communities without compromising safety or mobility. Additionally, FTA has issued a program circular addressing environmental justice in public transportation, C 4703.1, “Environmental Justice Policy Guidance for Federal Transit Administration Recipients.” This circular provides a framework for FTA grantees as they integrate principles of environmental justice into their transit decision-making processes. The Circular includes recommendations for State Departments of Transportation, Metropolitan Planning Organizations, and public transportation systems on how to: (1) Fully engage environmental justice populations in the transportation decision-making process; (2) determine whether environmental justice populations would be subjected to disproportionately high and adverse human health or environmental effects of a public transportation project, policy, or activity; and (3) avoid, minimize, or mitigate these effects.
This action meets the applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988 (February 5, 1996), Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
FTA has analyzed this rule under Executive Order 13045 (April 21, 1997), Protection of Children from Environmental Health Risks and Safety Risks. FTA certifies that this rule will not cause an environmental risk to health or safety that may disproportionately affect children.
FTA has analyzed this action under Executive Order 13175 (November 6, 2000), and believes that it will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal laws. Therefore, a tribal summary impact statement is not required.
FTA has analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). FTA has determined that this action is not a significant energy action under the Executive Order, given that the action is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.
Anyone is able to search the electronic form of all comments received into any of FTA's dockets by the name of the individual submitting the comment or signing the comment if submitted on behalf of an association, business, labor union, or any other entity. You may review USDOT's complete Privacy Act Statement published in the
This rulemaking is issued under the authority of 49 U.S.C. 5329(f)(7), which authorizes the Secretary to issue rules to carry out the mandate for a Public Transportation Safety Program at 49 U.S.C. 5329.
A Regulation Identification Number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN set forth in the heading of this document can be used to cross-reference this action with the Unified Agenda.
Public Transportation, Safety.
For the reasons set forth in the preamble, and under the authority of 49 U.S.C. 5329(f)(7), and the delegations of authority at 49 CFR 1.91, FTA hereby amends Chapter VI of Title 49, Code of Federal Regulations, by adding part 670 as set forth below:
49 U.S.C. 5329, 49 CFR 1.91.
This part carries out the mandate of 49 U.S.C. 5329 to improve the safety of public transportation systems. This part establishes substantive and procedural rules for FTA's administration of the Public Transportation Safety Program. This part applies to recipients of Federal financial assistance under 49 U.S.C. chapter 53.
The Federal Transit Administration (FTA) has adopted the principles and methods of Safety Management Systems (SMS) as the basis for enhancing the
As used in this part:
(a) The Administrator may conduct investigations, inspections, audits and examinations, and test the equipment, facilities, rolling stock and operations of a recipient's public transportation system.
(b) To the extent practicable, the Administrator will provide notice to a recipient prior to initiating any activities carried out under the authorities listed in paragraph (a) of this section.
(c) The Administrator will conduct activities carried out under this section at reasonable times and in a reasonable manner, as determined by the Administrator.
(d) In carrying out this section, the Administrator may require the production of relevant documents and records, take evidence, issue subpoenas and depositions, and prescribe recordkeeping and reporting requirements.
(a) The Administrator may grant a recipient's request for confidential treatment of records produced under § 670.11, on the basis that the records are—
(1) Exempt from the mandatory disclosure requirements of the Freedom of Information Act (5 U.S.C. 552);
(2) Required to be held in confidence by 18 U.S.C. 1905; or
(3) Otherwise exempt from public disclosure under Federal or State laws.
(b) A recipient must submit the record that contains the alleged confidential information with the request for confidential treatment.
(c) A recipient's request for confidential treatment must include a statement justifying nondisclosure and provide the specific legal basis upon which the request for nondisclosure should be granted.
(d) A recipient's justification statement must indicate whether the recipient is requesting confidentiality for the entire record, or whether non-confidential information in the record can be reasonably segregated from the confidential information. If a recipient is requesting confidentiality for only a portion of the record, the request must include a copy of the entire record and a second copy of the record where the purportedly confidential information has been redacted. The Administrator may assume there is no objection to public disclosure of the record in its entirety if the requestor does not submit a second copy of the record with the confidential information redacted at the time that the request is submitted.
(e) A recipient must mark any record containing any information for which confidential treatment is requested as
(f) The Administrator will provide notice to a recipient of his or her decision to approve or deny a request, in whole or in part, no less than five (5) days prior to the public disclosure of a record by FTA. The Administrator will provide an opportunity for a recipient to respond to his or her decision prior to the public disclosure of a record.
In addition to actions described in §§ 670.23 through 670.29, in exercising his or her authority under this part, the Administrator may—
(a) Require more frequent oversight of a recipient by a State Safety Oversight Agency that has jurisdiction over the recipient;
(b) Impose requirements for more frequent reporting by a recipient;
(c) Order a recipient to develop and carry out a corrective action plan; and
(d) Issue restrictions and prohibitions, if through testing, inspection, investigation, audit or research carried out under Chapter 53, the Administrator determines that an unsafe condition or practice, or a combination of unsafe conditions and practices, exist such that there is a substantial risk of death or personal injury.
(a)
(b)
(c)
(1) A statement of the legal authority for its issuance;
(2) A statement of the regulatory provisions or directives FTA believes the recipient has violated;
(3) A statement of the remedial action sought to correct the violation; and
(4) A statement of facts supporting the proposed remedial action.
(d)
(e)
(a)
(1) The Administrator determines that an unsafe condition or practice, or a combination of unsafe conditions and practices, exists such that there is a risk of death or personal injury, or damage to property or equipment; or
(2) For any other purpose where the Administrator determines that the public interest requires the avoidance or mitigation of a hazard or risk.
(b)
(c)
(1) A reference to the authority under which the directive is being issued;
(2) A statement of the purpose of the issuance of the directive, including a description of the subjects or issues involved and a statement of the remedial actions sought; and
(3) A statement of the time within which written comments must be received by FTA.
(d)
(e)
(a)
(1) The Deputy Administrator has reason to believe that a recipient is engaging in conduct, or there is evidence of a pattern or practice of a recipient's conduct, in violation of the Public Transportation Safety Program or any regulation or directive issued under those laws for which the Administrator exercises enforcement authority for safety;
(2) The Deputy Administrator determines that an unsafe condition or practice, or a combination of unsafe conditions and practices exists such that there is a substantial risk of death or personal injury, or damage to property or equipment; or
(3) For any other purpose where the Deputy Administrator determines that the public interest requires the avoidance or mitigation of a hazard or risk through immediate compliance.
(b)
(c)
(1) The name of the recipient or recipients to which the directive applies;
(2) A reference to the authority under which the directive is being issued; and
(3) A statement of the purpose of the issuance of the directive, including a description of the subjects or issues involved, a statement of facts upon
(d)
(1) Must be in writing and signed by a recipient's Accountable Executive or equivalent entity;
(2) Must include a brief explanation of why the recipient believes the special directive should not apply to it or why compliance with the special directive is not possible, is not practicable, is unreasonable, or is not in the public interest; and
(3) May include relevant information regarding the factual basis upon which the special directive was issued, information in response to any alleged violation or in mitigation thereof, recommend alternative means of compliance for consideration, and any other information deemed appropriate by the recipient.
(e)
(f)
(1) Email to FTA, sent to an email address provided in the notice of special directive;
(2) Facsimile to FTA at 202-366-9854; or
(3) Mail to FTA at: FTA, Office of the Administrator, 1200 New Jersey Ave. SE., Washington, DC 20590.
(g)
(2)
(3)
(4)
(h)
In any instance in which the Administrator determines there are hazards or risks to public transportation, the Administrator may issue an advisory which recommends corrective actions, inspections, conditions, limitations or other actions to avoid or mitigate any hazards or risks. The Administrator will issue notice to recipients of an advisory in the
Periodically, FTA will issue a National Public Transportation Safety Plan to improve the safety of all public transportation systems that receive funding under 49 U.S.C. Chapter 53. The National Public Transportation Safety Plan will include the following—
(a) Safety performance criteria for all modes of public transportation, established through public notice and comment;
(b) The definition of
(c) Minimum safety performance standards for vehicles in revenue operations, established through public notice and comment;
(d) Minimum performance standards for public transportation operations established through public notice and comment;
(e) The Public Transportation Safety Certification Training Program;
(f) Safety advisories, directives and reports;
(g) Best practices, technical assistance, templates and other tools;
(h) Research, reports, data and information on hazard identification and risk management in public transportation, and guidance regarding the prevention of accidents and incidents in public transportation; and
(i) Any other content as determined by FTA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS' Office of Protected Resources (hereinafter “OPR” or “we” or “our”), upon request of NMFS' Northeast Fisheries Science Center (NEFSC), hereby issues a regulation to govern the unintentional taking of marine mammals incidental to fisheries research conducted in a specified geographical region, over the course of five years. This regulation, which allows for the issuance of a Letter of Authorization for the incidental take of marine mammals during the described activities and specified timeframes, prescribes the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.
Effective from September 12, 2016 through September 9, 2021.
A copy of the NEFSC's application, application addendum, and supporting documents, as well as a list of the references cited in this document, are available on the Internet at:
Ben Laws, Office of Protected Resources, NMFS, (301) 427-8401.
This regulation, under the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361
The NEFSC collects a wide array of information necessary to evaluate the status of exploited fishery resources and the marine environment. Depending on the research, the NEFSC's conducts the following types of research: (1) Fishery-independent research directed by NEFSC scientists and conducted onboard NOAA-owned and operated vessels or NOAA-chartered vessels; (2) fishery-independent research directed by cooperating scientists (other agencies, academic institutions, and independent researchers) conducted onboard non-NOAA vessels; and (3) fishery-dependent research conducted onboard commercial fishing vessels, with or without NOAA scientists onboard.
OPR received an application from the NEFSC requesting five-year regulations and authorization to take multiple species of marine mammals. We anticipate take to occur in the Atlantic coast region by the following means: Level B harassment incidental to the use of active acoustic devices, visual disturbance of pinnipeds, and Level A harassment, serious injury, or mortality incidental to the use of fisheries research gear. This regulation is valid for five years from the date of issuance. Please see “Background” later in this document for definitions of harassment.
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361
Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing the five-year regulations and any subsequent Letters of Authorization.
The following provides a summary of some of the major provisions within this regulation for the NEFSC's fisheries research activities in the Atlantic coast region. We have determined that the NEFSC's adherence to the mitigation, monitoring, and reporting measures listed later in this regulation would achieve the least practicable adverse impact on the affected marine mammals. They include:
• Required monitoring of the sampling areas to detect the presence of marine mammals before deployment of pelagic trawl nets, bottom-contact trawl gear, pelagic or demersal longline gear, gillnets, fyke nets, pots, traps, and other gears;
• Required implementation of standard tow durations of not more than 30 minutes to reduce the likelihood of incidental take of marine mammals;
• Required implementation of the mitigation strategy known as the “move-on rule,” which incorporates best professional judgment, when necessary during trawl and longline operations;
• Required compliance with applicable vessel speed restrictions; and
• Required compliance with applicable and relevant take reduction plans for marine mammals.
This final rule, specific only to the NEFSC's fishery research activities, is not significant under Executive Order 12866, Regulatory Planning and Review.
We provided
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if OPR finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. OPR has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
On December 17, 2014, OPR received an adequate and complete request from the NEFSC for authorization to take marine mammals incidental to fisheries research activities. We received an initial draft of the request on February 12, 2014, followed by revised drafts on September 19 and October 1, 2014. On December 29, 2014 (79 FR 78065), we published a notice of receipt of the NEFSC's application in the
The NEFSC proposes to conduct fisheries research using the following types of gear: Pelagic trawl gear used at various levels in the water column, bottom-contact trawl gear, pelagic and demersal longlines with multiple hooks, gillnets, fyke nets, dredges, pots, traps, and other gear. If a marine mammal interacts with gear deployed by the NEFSC, the outcome could potentially be Level A harassment, serious injury (
The NEFSC conducts fisheries research surveys in the Atlantic coast region which spans the United States-Canadian border to Florida. This specified geographic region includes the following subareas: The Gulf of Maine, Georges Bank, Southern New England waters, the Mid-Atlantic Bight, and the coastal waters of northeast Florida. The NEFSC requested authorization to take individuals of 10 species by Level A harassment, serious injury, or mortality (hereafter referred to as M/SI + Level A) and of 19 species by Level B harassment.
The NEFSC collects a wide array of information necessary to evaluate the status of exploited fishery resources and the marine environment. NEFSC scientists conduct fishery-independent research onboard NOAA-owned and operated vessels or on chartered vessels. For other types of surveys, cooperating scientists may conduct fishery-independent research onboard non-NOAA vessels. Finally, the NEFSC sponsors some fishery-dependent research conducted onboard commercial fishing vessels, with or without NEFSC scientists onboard.
The NEFSC plans to administer and conduct approximately 48 survey programs over the five-year period. The gear types used fall into several categories: Pelagic trawl gear used at various levels in the water column; bottom-contact trawl gear; pelagic and demersal longlines; gillnets; fyke nets; pots; traps; and other gear. The use of pelagic and bottom trawl nets, gillnets, fyke nets, and pelagic longline gears are likely to result in interactions with marine mammals. The majority of these surveys also use active acoustic devices.
The federal government has a responsibility to conserve and protect living marine resources in U.S. waters and has also entered into a number of international agreements and treaties related to the management of living marine resources in international waters outside the United States. NOAA has the primary responsibility for managing marine fin and shellfish species and their habitats, with that responsibility delegated within NOAA to NMFS.
In order to direct and coordinate the collection of scientific information needed to make informed fishery management decisions, Congress created six Regional Fisheries Science Centers, each a distinct organizational entity and the scientific focal point within NMFS for region-based federal fisheries-related research. This research aims at monitoring fish stock recruitment, abundance, survival and biological rates, geographic distribution of species and stocks, ecosystem process changes, and marine ecological research. The NEFSC is the research arm of NMFS in the greater Atlantic Ocean region of the United States. The NEFSC conducts research and provides scientific advice to manage fisheries and conserve protected species in Northeast and Southeast LMEs and provides scientific information to support the New England Fishery Management Council, the Mid-Atlantic Fishery Management Council, the Atlantic States Marine Fisheries Commission, and numerous other domestic and international fisheries management organizations.
The specified activity may occur at any time during the five-year period of validity of the issued regulation. Dates and duration of individual surveys are inherently uncertain, based on congressional funding levels for the NEFSC, weather conditions, or ship contingencies. In addition, the NEFSC designs the cooperative research program to provide flexibility on a yearly basis in order to address issues as they arise. Some cooperative research projects last multiple years or may continue with modifications. Other projects only last one year and are not continued. Most cooperative research projects undergo an annual competitive selection process to determine funding for projects based on proposals developed by many independent researchers and fishing industry participants. NEFSC survey activity occurs during most months of the year; however, most trawl surveys occur during the spring, summer, and fall. Longline surveys occur either biannually in the spring or annually in the summer and a small number of gillnet surveys occur annually in the summer.
The NEFSC operates within the Atlantic coast region, which was described in detail in the notice of proposed rulemaking for this activity in the
We provided a detailed description of the NEFSC's planned research activities, gear types and active acoustic sound sources used in the notice of proposed rulemaking (80 FR 39546-39560; July 9, 2015) and do not repeat that information here. There are no changes to the specified activities, gear types, or active acoustic sound sources described in that document.
We published a notice of proposed rulemaking in the
The Commission suggests that, for certain sources considered here, the interval between pulses would not be discernible to the animal, rendering them effectively continuous. However, echosounders emit pulses in a similar fashion as odontocete echolocation click trains. Research indicates that marine mammals, in general, have extremely fine auditory temporal resolution and can detect each signal separately (
In conclusion, echosounder signals are intermittent rather than continuous signals, and the fine temporal resolution of the marine mammal auditory system allows them to perceive these sounds as such. Further, the physical characteristics of these signals indicate a greater similarity to the way that intermittent, impulsive sounds are received. Therefore, the 160-dB threshold (typically associated with impulsive sources) is more appropriate than the 120-dB threshold (typically associated with continuous sources) for estimating takes by behavioral harassment incidental to use of such sources. This response represents the consensus opinion of acoustics experts from NMFS' OPR and Office of Science and Technology.
Finally, we agree with the Commission's recommendation to revise existing acoustic criteria and thresholds as necessary to specify threshold levels that would be more appropriate for a wider range of sound sources and are currently in the process of producing such revisions (see 80 FR 45642, July 31, 2015). NOAA recognizes, as new science becomes available, that our current categorizations (
Second, for the purposes of determining whether the issuance of regulations and a subsequent Letter of Authorization (LOA) would have a significant effect on the human environment, OPR stated that we would independently evaluate the NEFSC's Draft PEA, propose to adopt it (
The NEFSC's revised analysis revealed that the Apex Predators Bottom Longline Coastal Shark Survey intersects with the estimated ranges of three stocks of bottlenose dolphins: The WNA Offshore; the WNA Northern Migratory Coastal; and the WNA Southern Migratory Coastal stocks. This survey generally samples in water depths greater than 20 m (66 ft) (
In assessing the impacts of the COASTSPAN survey, the NEFSC did not request take from the estuarine stocks of bottlenose dolphins in North Carolina, South Carolina, Georgia, and Florida, due to limited survey effort in estuarine waters. As discussed in the notice of proposed rulemaking (80 FR 39587, July 9, 2015), in the future, if there is a bottlenose dolphin take from one of the estuarine stocks (to be determined by genetic sampling), the NEFSC will consult with OPR and the Atlantic Bottlenose Dolphin Take Reduction Team under the Adaptive Management provisions of the final rule to discuss appropriate modifications to COASTSPAN survey protocols.
NMFS provided a revised accounting of those coastal bottlenose dolphin stocks potentially impacted by the NEFSC's research activities within the 2015 Addendum to the NEFSC's 2014 LOA Application, available at:
The NEFSC notes in their final PEA that the Southeast Fisheries Science Center's (SEFSC) research activities could also potentially interact with the some of the same offshore and coastal stocks in the Atlantic coast region. The SEFSC is currently developing a Draft PEA and LOA application concerning fisheries research under its responsibility within the Atlantic coast region. The SEFSC's Draft PEA will also include consideration of coastal and estuarine bottlenose dolphin stocks within their future LOA application. This will include consideration of the NEFSC's research activities that occur in the Atlantic coast region. Thus, NMFS will be able to consider the combined impacts of incidental take related to NEFSC and SEFSC research activities on all bottlenose dolphin stocks within the Atlantic coast region.
The dolphin stocks that may potentially occur within the vicinity of NEFSC coastal research activities include: The WNA Offshore, the WNA Northern Migratory Coastal, the Southern Migratory Coastal, and the WNA Southern Migratory Coastal stocks. However, specific information is lacking on which particular population or populations are affected by the UME (NMFS, 2015).
As discussed in the notice of proposed rulemaking and in the analyses in other referenced documents, NMFS has evaluated the potential effects of the NEFSC's research activities on a number of marine mammal species, including impacts to bottlenose dolphins stocks subject to the current UME and concludes that NEFSC's activities will have a negligible impact on those stocks.
The Risch
Furthermore, the three predominant acoustic sources used by the NEFSC produce frequencies above the known functional hearing ranges for mysticetes. Mysticetes, including the humpback whale, are not likely to perceive most signals produced through the NEFSC's use of active acoustic sources and are therefore unlikely to behaviorally respond in a manner considered take. The NEFSC's initial estimates of Level B harassment due to acoustic sources did not consider functional hearing ranges and are therefore overestimates for mysticetes. For the final rule, NMFS has considered functional hearing and
In order to issue an incidental take authorization under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses.” NMFS provided a full description of the planned mitigation measures, including background discussion related to certain elements of the mitigation plan, in the notice of proposed rulemaking (80 FR 39595, July 9, 2015). Please see that document for more detail.
For all NEFSC-affiliated research projects and vessels, the vessel coordinator and center director reviews cruise instructions and protocols for avoiding adverse interactions with protected species. If the research is conducted on a NOAA vessel, the Commanding Officer finalizes these instructions. If any inconsistencies or deficiencies are found, the written instructions will be made fully consistent with the Northeast Fisheries Observer Program (NEFOP) training materials and any guidance on decision-making that arises out of the training opportunities described earlier. In addition, the NEFSC will review informational placards and reporting procedures and update them as necessary for consistency and accuracy. Many research cruises already include pre-sail review of protected species protocols. The NEFSC will require pre-sail briefings before all research cruises, including those conducted by cooperating partners, as part of its continuing research program.
All NEFSC research crew members that may be assigned to monitor for the presence of marine mammals during future surveys will be required to attend an initial training course and refresher courses annually or as necessary. The implementation of this new training program will formalize and standardize the information provided to all crew that might experience protected species interactions during research activities.
The mitigation requirements described here are applicable to all beam, mid-water, and bottom trawl operations conducted by the NEFSC.
After moving on, if marine mammals are still visible from the vessel and appear to be at risk, the OOD may decide to move the vessel again or skip the sampling station. The OOD will consult with the CS or other designated scientist (identified prior to the voyage and noted on the cruise plan) and other experienced crew as necessary to determine the best strategy to avoid potential takes of these species. Strategies are based on the species encountered, their numbers and behavior, their position and vector relative to the vessel, and other factors. For instance, a whale transiting through the area and heading away from the vessel may not require any move, or may require only a short move from the initial sampling site, while a pod of dolphins gathered around the vessel may require a longer move from the initial sampling site or possibly cancellation of the station if the dolphins follow the vessel. If trawling operations have been delayed because of the presence of marine mammals, then the vessel resumes trawl operations (when practical) only when the animals have not been sighted near the vessel or otherwise determined to no longer be at risk. This decision is at the discretion of the OOD and is situationally dependent.
In general, trawl operations will be conducted immediately upon arrival on station in order to minimize the time during which marine mammals may become attracted to the vessel. However, in some cases it will be necessary to conduct small net tows (
Once the trawl net is in the water, the OOD, CS, and/or crew standing watch will continue to visually monitor the surrounding waters and will maintain a lookout for marine mammal presence as far away as environmental conditions allow.
If marine mammals are sighted before the gear is fully retrieved, the most appropriate response to avoid marine mammal interaction will be determined by the professional judgment of the CS, watch leader, OOD and other experienced crew as necessary. This judgment will be based on past experience operating trawl gears around marine mammals (
As noted earlier, if marine mammals are sighted prior to deployment of the trawl net, the vessel may be moved away from the animals to a new station at the discretion of the OOD. Also, at any time during a survey or in transit, any crew member that sights marine mammals that may intersect with the vessel course will immediately communicate their presence to the bridge for appropriate course alteration or speed reduction as possible to avoid incidental collisions.
Standard survey protocols that are expected to lessen the likelihood of marine mammal interactions include standardized tow durations and distances. Standard tow durations of not more than 30 minutes at the target depth will be implemented, excluding
Trawl tow distances will be less than 3 nm—typically 1-2 nm, depending on the specific survey and trawl speed—which NMFS expects to reduce the likelihood of attracting and incidentally taking marine mammals.
The mitigation requirements described here are applicable to all hydraulic, New Bedford-type, commercial, and Naturalist dredge operations conducted by the NEFSC.
For the Apex Predators Bottom Longline Coastal Shark Survey, which has a separate survey protocol from the COASTSPAN and NEFOP Observer Bottom Longline Training surveys conducted by NEFSC, the OOD, CS, and crew use a one nautical mile radius around the vessel to guide the decision on whether marine mammals are at risk of interactions before deploying the gear. The vessel may be moved to a new location if marine mammals are present and the OOD uses professional judgment to minimize the risk to marine mammals from potential gear interactions.
The OOD, CS, and crew standing watch will continually monitor the gear to look for hooked or entangled marine mammals and other protected species and will release the animal following standard handling and release protocols for marine mammals.
The NEFSC has established standard soak times of three hours for bottom longline and two to five hours for pelagic longline surveys. The CS will ensure that soak times do not exceed five hours, except in cases where weather or mechanical difficulty delay gear retrieval.
NEFSC longline protocols specifically prohibit chumming (releasing additional bait to attract target species to the gear). Bait is removed from hooks during retrieval and retained on the vessel until all gear is removed from the area. The crew will not discard offal or spent bait while longline gear is in the water to reduce the risk of marine mammals detecting the vessel or being attracted to the area.
If marine mammals are detected while longline gear is in the water, the OOD exercises similar judgment and discretion to avoid incidental take of marine mammals as described for trawl gear. The species, number, and behavior of the marine mammals are considered along with the status of the ship and gear, weather and sea conditions, and crew safety factors.
If marine mammals are present during setting operations, immediate retrieval or halting the setting operations may be warranted. If setting operations have been halted due to the presence of marine mammals, resumption of setting will not begin until no marine mammals have been observed for at least 15 minutes. When visibility allows, the OOD, CS, and crew standing watch will conduct set checks every 15 minutes to look for hooked, or entangled marine mammals.
If marine mammals are present during retrieval operations, haul-back will be postponed until the OOD determines that it is safe to proceed. If haul-back operations have been halted due to the presence of marine mammals, resumption of haul-back would begin when no marine mammals have been observed for at least 15 minutes. When visibility allows, the OOD, CS, and crew standing watch will conduct set checks every 15 minutes to look for hooked, trapped, or entangled marine mammals.
For the COASTSPAN surveys, which are performed in areas where estuarine dolphins may occur, the NEFSC will actively monitor for potential bottlenose dolphin entanglements by hand checking the gillnet gear every 20 minutes by lifting the foot net. Also, in the unexpected case of a bottlenose dolphin entanglement, the NEFSC would request and arrange for expedited genetic sampling in order to determine the stock and would photograph the dorsal fin and submit to the Southeast Stranding Coordinator for identification/matching to bottlenose dolphins in the Mid-Atlantic Bottlenose Dolphin Photo-identification Catalog.
On the NEFOP Observer Gillnet Training cruises, which occur in areas covered by the HPTRP, acoustic pingers and weak links are used on all gillnets consistent with the Harbor Porpoise Take Reduction Plan regulations at (50 CFR 229.33) for commercial fisheries to reduce marine mammal bycatch. Under
All NEFOP protocols concerning monitoring and reporting protected species interactions are followed as per the current NEFOP Observer Manual (available on the internet at
The mitigation requirements described earlier are applicable to commercial fishing vessels engaged in NEFSC cooperative research using trawls, dredges, longline, hook and line, lobster pots/traps, and gillnet gears.
These commercial fishing vessels are significantly smaller than the NOAA vessels, and depending on their size and configuration, marine mammal sighting may be difficult to make during all aspects of fishing operations. Further, scientific personnel are normally restricted from the deck during gear setting and haul-back operations. For all vessel size classes, it is unlikely that the individual(s) searching for marine mammals will have unrestricted 360 degree visibility around the vessel. However, observations during approach to a fishing station and during gear setting and haul-back may be feasible and practicable from the wheelhouse.
These projects will also comply with the TRP mitigation measures and gear requirements specified for their respective fisheries and areas (
The NEFSC will review all NEFSC-affiliated research instructions and protocols for avoiding adverse interactions with protected species. If those instructions/protocols are not fully consistent with NEFOP training materials and guidance on decision-making that arises from NEFSC protected species training, the NEFSC will incorporate specific language into its contracts and agreements with NEFSC-affiliated research partners requiring adherence to all required training requirements, operating procedures, and reporting requirements for protected species.
Several NEFSC and cooperative research surveys use fish or lobster pots to selectively capture species for research, tagging studies, and sample collection. Fish pots select for particular species by configuring the entrances, mesh, and escape tunnels (or “vents”) to allow retention of the target species, while excluding larger animals, and allowing smaller animals to escape from the pot before retrieval.
If marine mammals are sighted near the vessel during the soak and are determined to be at risk of interacting with the gear, then the NEFSC and/or cooperating institutions shall carefully retrieve the gear as quickly as possible. The NEFSC and/or cooperating institutions may use best professional judgment in making this decision.
The NEFSC and/or cooperating institutions shall ensure that surveys deploy gear fulfilling all pot/trap universal commercial gear configurations such as weak link requirements and marking requirements as specified by applicable take reduction plans as required for commercial pot/trap fisheries.
The NEFSC shall ensure that cooperating institutions conducting pot and trap surveys adhere to monitoring and mitigation requirements and shall include required protocols in all survey instructions, contracts, and agreements.
The NEFSC deploys passive acoustic telemetry receivers in many of Maine's rivers, estuaries, bays and into the Gulf of Maine. These receivers monitor tagged Atlantic salmon, as well as other tagged animals of collaborators along the east coast.
We have carefully evaluated the NEFSC's planned mitigation measures and considered a range of other measures in the context of ensuring that we prescribed the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation.
Any mitigation measure(s) we prescribe should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:
(1) Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
(2) A reduction in the number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
(3) A reduction in the number (total number or number at biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
(4) A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing the severity of behavioral harassment only).
(5) Avoidance or minimization of adverse effects to marine mammal habitat, paying particular attention to the prey base, blockage or limitation of passage to or from biologically important areas, permanent destruction of habitat, or temporary disturbance of habitat during a biologically important time.
(6) For monitoring directly related to mitigation, an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of the NEFSC's planned measures, as well as other measures considered, NMFS has determined that these mitigation measures provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
NMFS previously reviewed the NEFSC species descriptions—which summarize available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species—for accuracy and completeness and refer the reader to Sections 3 and 4 of the NEFSC's application, as well as to NMFS' Stock Assessment Reports (SARs;
NMFS provided a summary and discussion of the ways that components of the specified activity (
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].” Serious injury means any injury that will likely result in mortality (50 CFR 216.3).
Take of marine mammals incidental to the NEFSC's research activities could occur as a result of: (1) Injury or mortality due to gear interaction; (2) behavioral disturbance resulting from the use of active acoustic sources (Level B harassment only); or (3) behavioral disturbance of pinnipeds hauled out on the shoreline resulting from close proximity of research vessels (Level B harassment only).
The NEFSC has no recorded interactions with any gear other than midwater and bottom trawl, gillnet, and fyke net gears. As noted in the notice of proposed rulemaking (80 FR 39595, July 9, 2015), we anticipate future interactions with the same gear types.
In order to use these historical interaction records in a precautionary manner as the basis for the take estimation process, and because we have no specific information to indicate whether any given future interaction might result in M/SI versus Level A harassment, we conservatively assume that all interactions equate to mortality.
During trawl surveys, the NEFSC has recorded interactions with short-beaked common dolphins (Western North Atlantic stock; two total interactions with three individual animals); minke whale (one total interaction with one animal); and gray seal (one total interaction with one animal). Common dolphins are the species most likely to interact with NEFSC trawl gear with an average of 1.5 dolphins captured per interaction.
During gillnet surveys, the NEFSC has recorded interactions with short-beaked common dolphins (Northern South Carolina Estuarine System stock; one total interaction with one animal); gray seal (one total interaction with one animal); and harbor porpoise (one total interaction with one animal).
During one fyke net survey in 2010, the NEFSC recorded one interaction with one harbor seal. Since this recorded interaction, the NEFSC now requires the use of marine mammal excluder devices as a mitigation measure for this gear type.
In order to produce the most precautionary take estimates possible, we use here the entirety of the data available to us (
In order to estimate the potential number of incidents of M/SI + Level A that could occur incidental to the NEFSC's use of midwater and bottom trawl, gillnet, fyke net, and longline gear in the Atlantic coast region over the five-year period from 2015-20, we first look at the six species described that have been taken historically and then evaluate the potential vulnerability of additional species to these gears.
Table 4 in this document shows the 11-year annual average captures of these six species and the projected five-year totals for this final rule, for trawl, gillnet, and fyke net gear. In order to produce precautionary estimates, we calculate the annual average for the 11-year period (2004-2015) and round up the annual to the nearest whole number. Because the NEFSC requests take for a five-year period, we multiply the annual average by five and assume that this number may be taken within the effective five-year period of the proposed authorization.
To date, infrequent interactions of trawl nets, gillnets, and fyke net gears with marine mammals have occurred in the Atlantic coast region during NEFSC research activities. The NEFSC interaction rates have exhibited some inter-annual variation in numbers, possibly due to changing marine mammal densities and distributions and dynamic oceanographic conditions. This approach is precautionary. Estimating takes of species captured historically will produce an estimate higher than the historic average take for each species taken incidentally during past NEFSC research. We use this methodology to ensure accounting for the maximum amount of potential take in the future, as well as accounting for the fluctuations in inter-annual variability observed during the 11-year time period. Moreover, these estimates are based on the assumption that annual effort over the proposed five-year authorization period will not exceed the annual effort during the period 2004-2015.
As background to the process of determining which species not historically taken may have sufficient vulnerability to capture in NEFSC gear to justify inclusion in the take authorization request, we note that the NEFSC is NMFS' research arm in the Greater Atlantic region which we consider as a leading source of expert knowledge regarding marine mammals (
In order to evaluate the potential vulnerability of additional species to trawl gears, gillnets, and fyke nets, we first consulted NMFS' List of Fisheries (LOF), which classifies U.S. commercial fisheries into one of three categories according to the level of incidental marine mammal M/SI that is known to occur on an annual basis over the most recent five-year period (generally) for which data has been analyzed. Despite no historical records of take in the
Information related to incidental M/SI in relevant commercial fisheries is not, however, the sole determinant of whether it may be appropriate to authorize M/SI + Level A incidental to NEFSC survey operations. A number of factors (
We note that prior takes in the cooperative research fishery are assigned to the respective fishery; therefore the NEFSC did not consider those types of take in formulating the requested authorization. The NEFSC only estimated takes for NEFSC gear that: (1) Had a prior take in the historical record or (2) had analogous takes with commercial fishing gear.
Vulnerability of analogous species to different gear types is informed by the record of interactions by the analogous and reference species with commercial fisheries using gear types similar to those used in research. Furthermore, when determining the amount of take requested, we make a distinction between analogous species thought to have the same vulnerability for incidental take as the reference species and those analogous species that may have a similar vulnerability. In those cases thought to have the same vulnerability, the request is for the same number per year as the reference species. In those cases thought to have similar vulnerability, the request is less than the reference species. For example, the NEFSC believes the vulnerability of harbor seals to be taken in trawl gear and gillnets is the same as for gray seals (one per year) and thus requests one harbor seal per year (total of five over the authorization period) for trawl gear and gillnets.
Alternatively, the potential for take of Atlantic white-sided dolphins in gillnets is expected to be similar but less than that associated with harbor porpoises (one per year) and the reduced request relative to this reference species is one Atlantic white sided dolphin over the entire five-year authorization period.
The approach outlined here reflects: (1) Concern that some species with which we have not had historical interactions may interact with these gears, (2) acknowledgment of variation between sets, and (3) understanding that many marine mammals are not solitary so if a set results in take, the take could be greater than one animal. In these particular instances, the NEFSC estimates the take of these species to be equal to the maximum interactions per any given set of a reference species historically taken during 2004-2015.
Other dolphin species may have similar vulnerabilities as those listed above but because of the timing and location of NEFSC research activities, the NEFSC concluded that the likelihood for take of these species was low (see Tables 8, 9, and 10 in the notice of proposed rulemaking [80 FR 39595, July 9, 2015]). Those species include: Pantropical spotted dolphin; striped dolphin; Fraser's dolphin; rough-toothed dolphin; Clymene dolphin; and spinner dolphin.
Two pinniped species may be taken in commercial fisheries analogous to NEFSC research trawl activities. Therefore, NEFSC requests one potential take each of gray and harbor seals annually in trawls over the LOA authorization period. For these pinniped species, we propose to authorize a total taking by M/SI + Level A of five individuals over the five-year timespan (see Table 5).
Gillnet surveys typically occur nearshore in bays and estuaries. The NEFSC caught one gray seal and one harbor porpoise during Northeast Fisheries Observer Program training gillnet surveys. The NEFSC believes that harbor seals have the same vulnerability to be taken in gillnets as gray seals and therefore estimates five takes of harbor seals in gillnets over the five-year authorization period. For this species, we propose to authorize a total taking by M/SI + Level A of five individuals over the five-year timespan (see Table 5).
Likewise, the NEFSC believes that Atlantic white-sided dolphins and short-beaked common dolphins have a similar vulnerability to be taken in gillnets as harbor porpoise and bottlenose dolphins and estimates one take each of Atlantic white-sided dolphin and short-beaked common dolphin in gillnet gear over the five-year authorization period. For this species,
In 2008, the COASTSPAN gillnet survey caught and killed one common bottlenose dolphin while a cooperating institution was conducting the survey in South Carolina. This was the only occurrence of incidental take in these surveys. The NEFSC is not requesting any bottlenose dolphin takes from the Northern South Carolina Estuarine System stock, because of limited survey effort in estuarine waters. The NEFSC considers there to be a remote chance of incidentally taking a bottlenose dolphin from the estuarine stocks. Thus, the NEFSC is not requesting take for the estuarine stocks of bottlenose dolphins for the COASTPAN longline and gillnet surveys. However, in the future, if there is a bottlenose dolphin take from the estuarine stocks as confirmed by genetic sampling, the NEFSC will reconsider its take request in consultation and coordination with the NMFS Office of Protected Resources and the Atlantic Bottlenose Dolphin Take Reduction Team.
It is also possible that researchers may not be able to identify a captured animal to the species level with certainty. Certain pinnipeds and small cetaceans are difficult to differentiate at sea, especially in low-light situations or when a quick release is necessary. For example, a captured delphinid that is struggling in the net may escape or be freed before positive identification is made. Therefore, the NEFSC has requested the authorization of incidental M/SI + Level A for an unidentified delphinid by trawl (1 individual), gillnet (1 individual), and longline (1 individual) gears over the course of the five-year period of the proposed authorization. Similarly, the NEFSC has requested the authorization of incidental M/SI + Level A for an unidentified pinniped by trawl (1 individual), fyke net (1 individual), gillnet (1 individual), and longline (1 individual) gears.
Table 5 summarizes total estimated take due to gear interactions in the Atlantic coast region; these estimates reflects revisions from those provided in the notice of proposed rulemaking (80 FR 39595, July 9, 2015) and the correction to the proposed rulemaking in the
As described in the notice of proposed rulemaking (80 FR 39595, July 9, 2015), we believe that NEFSC's use of active acoustic sources has, at most, the potential to cause Level B harassment of marine mammals. In order to attempt to quantify the potential for Level B harassment to occur, NMFS (including the NEFSC and acoustics experts from other parts of NMFS) developed an analytical framework considering characteristics of the active acoustic systems described in the notice of proposed rulemaking (80 FR 39595, July 9, 2015) under
The assessment paradigm for active acoustic sources used in NEFSC fisheries research is relatively straightforward and has a number of key simplifying assumptions. NMFS' current acoustic guidance requires in most cases that we assume Level B harassment occurs when a marine mammal receives an acoustic signal at or above a simple step-function threshold. For use of these active acoustic systems, the current threshold is 160 dB re 1 μPa (rms) for Level B harassment. Estimating the number of exposures at the 160-dB received level requires several determinations, each of which is described sequentially here:
(1) A detailed characterization of the acoustic characteristics of the effective sound source or sources in operation;
(2) The operational areas exposed to levels at or above those associated with Level B harassment when these sources are in operation;
(3) A method for quantifying the resulting sound fields around these sources; and
(4) An estimate of the average density for marine mammal species in each area of operation.
Quantifying the spatial and temporal dimension of the sound exposure footprint (or “swath width”) of the active acoustic devices in operation on moving vessels and their relationship to the average density of marine mammals enables a quantitative estimate of the number of individuals for which sound levels exceed the relevant threshold for each area. The number of potential incidents of Level B harassment is ultimately estimated as the product of the volume of water ensonified at 160 dB rms or higher and the volumetric density of animals determined from simple assumptions about their vertical stratification in the water column. Specifically, reasonable assumptions based on what is known about diving behavior across different marine mammal species were made to segregate those that predominately remain in the upper 200 m of the water column versus those that regularly dive deeper during foraging and transit. We described the approach used (including methods for estimating each of the calculations described above) and the assumptions made that result in conservative estimates in significant detail in our notice of proposed rulemaking (80 FR 39595, July 9, 2015), and do not repeat the discussion here.
As a result of discussion with NMFS subject matter experts in drafting the final rule, we have determined it appropriate to account for marine mammal functional hearing, although our consideration of functional hearing is fairly simplistic. We now consider functional hearing cut-offs (
However, the known differences in hearing sensitivities between different marine mammal species, and within a functional hearing range (
Estimated take due to physical disturbance could potentially occur in the Penobscot River Estuary as a result of the unintentional approach of NEFSC vessels to pinnipeds hauled out on ledges.
The NEFSC uses four gear types (fyke nets, beach seine, rotary screw traps, and Mamou shrimp trawl) to monitor fish communities in the Penobscot River Estuary. The NEFSC conducts the annual surveys over specific sampling periods which could use any gear type: Mamou trawling is conducted year-round; fyke net and beach seine surveys are conducted April-November; and rotary screw trap surveys from April-June.
We anticipate that trawl, fyke net, and beach seine surveys may disturb harbor seals and gray seals hauled out on tidal ledges through physical presence of researchers. The NEFSC conducts these surveys in upper Penobscot Bay above Fort Point Ledge where there is only one minor seal ledge (Odum Ledge) used by approximately 50 harbor seals (
There were no observations of gray seals in the 2001 survey, but recent anecdotal information suggests that a few gray seals may share the haulout site. These fisheries research activities do not entail intentional approaches to seals on ledges (
The NEFSC estimated potential incidents of Level B harassment due to physical disturbance (Table 8) using the following assumptions: (1) All hauled out seals may be disturbed by passing research skiffs, although researchers have estimated that only about 10 percent (5 animals in a group of 50) have been visibly disturbed in the past; and (2) approximately 50 harbor seals and 20 gray seals may be disturbed by the passage of researchers for each survey effort (100 fyke net sets, 100 beach seine sets, and 200 Mamou shrimp trawls per year).
The estimated total number of instances of harassment is approximately 20,000 for harbor seals and 8,000 for gray seals annually.
Here we provide summary tables detailing the total proposed incidental take authorization on an annual basis for the NEFSC in the Atlantic coast region, as well as other information relevant to the negligible impact analyses.
Here we provide negligible impact analyses and small numbers analyses for the Atlantic coast region. Unless otherwise specified, the discussion below is intended to apply to all of the species for which take is authorized,
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
In 1988, Congress amended the MMPA, with provisions for the incidental take of marine mammals in commercial fishing operations. Congress directed NMFS to develop and recommend a new long-term regime to govern such incidental taking (see MMC, 1994). The need to set allowable take levels incidental to commercial fishing operations led NMFS to suggest a new and simpler conceptual means for assuring that incidental take does not cause any marine mammal species or stock to be reduced or to be maintained below the lower limit of its Optimum Sustainable Population (OSP) level. That concept (PBR) was incorporated in the 1994 amendments to the MMPA, wherein Congress enacted MMPA sections 117 and 118, establishing a new regime governing the incidental taking of marine mammals in commercial fishing operations and stock assessments.
PBR, which is defined by the MMPA (16 U.S.C. 1362(20)) as “the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population,” is one tool that can be used to help evaluate the effects of M/SI on a marine mammal stock. OSP is defined by the MMPA (16 U.S.C. 1362(9)) as “the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.” A primary goal of the MMPA is to ensure that each stock of marine mammal either does not have a level of human-caused M/SI that is likely to cause the stock to be reduced below its OSP level or, if the stock is depleted (
PBR appears within the MMPA only in section 117 (relating to periodic stock assessments) and in portions of section 118 describing requirements for take reduction plans for reducing marine mammal bycatch in commercial fisheries. PBR was not designed as an absolute threshold limiting human activities, but as a means to evaluate the relative impacts of those activities on marine mammal stocks. Specifically, assessing M/SI relative to a stock's PBR may signal to NMFS the need to establish take reduction teams in commercial fisheries and may assist NMFS and existing take reduction teams in the identification of measures to reduce and/or minimize the taking of marine mammals by commercial fisheries to a level below a stock's PBR. That is, where the total annual human-caused M/SI exceeds PBR, NMFS is not required to halt fishing activities contributing to total M/SI but rather may prioritize working with a take reduction team to further mitigate the effects of fishery activities via additional bycatch reduction measures.
Since the introduction of PBR, NMFS has used the concept almost entirely within the context of implementing sections 117 and 118 and other commercial fisheries management-related provisions of the MMPA, including those within section 101(a)(5)(E) related to the taking of ESA-listed marine mammals incidental to commercial fisheries (64 FR 28800; May 27, 1999). The MMPA requires that PBR be estimated in stock assessment reports and that it be used in applications related to the management of take incidental to commercial fisheries (
We have produced what we believe to be conservative estimates of potential incidents of Level B harassment. The procedure for producing these estimates, described in detail in the notice of proposed rulemaking (80 FR 39542, July 9, 2015) and summarized earlier in the
In particular, low-frequency hearing specialists (
However, assuming that all of the takes proposed for authorization actually occur, we assess these quantitatively by comparing to the calculated PBR for each stock. Estimated M/SI + Level A for all stocks is significantly less than PBR (less than six percent for each stock).
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the planned mitigation measures, we find that the total marine mammal take from NEFSC fisheries research activities will have a negligible impact on the affected marine mammal species or stocks in the Atlantic coast region. In summary, this finding of negligible impact is founded on the following factors: (1) The possibility of injury, serious injury, or mortality from the use of active acoustic devices may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment from the use of active acoustic devices consist of, at worst, temporary and relatively minor modifications in behavior; (3) the predicted number of incidents of combined Level A harassment, serious injury, and mortality are at insignificant levels relative to all affected stocks; and (4) the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact. In addition, no M/SI is proposed for authorization for any species or stock that is listed under the ESA. In combination, we believe that these factors demonstrate that the specified activity will have only short-term effects on individuals (resulting from Level B harassment) and that the total level of taking will not impact rates of recruitment or survival sufficiently to result in population-level impacts.
Please see Table 9 for information relating to this small numbers analysis. The total amount of taking proposed for authorization is less than 6.0 percent for all stocks.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed mitigation measures, we find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks in the Atlantic coast region.
In order to issue an incidental take authorization for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.
Any monitoring requirement we prescribe should improve our understanding of one or more of the following:
• Occurrence of marine mammal species in action area (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological).
• How anticipated responses to stressors impact either: (1) long-term fitness and survival of an individual; or (2) population, species, or stock.
• Effects on marine mammal habitat and resultant impacts to marine mammals.
• Mitigation and monitoring effectiveness.
The NEFSC plans to make more systematic its training, operations, data collection, animal handling and sampling protocols, etc. in order to improve its ability to understand how
Marine mammal watches are a standard part of conducting fisheries research activities, and are implemented as described previously in
In the Penobscot Bay only, the NEFSC will monitor any potential disturbance of pinnipeds on ledges, paying particular attention to the distance at which different species of pinniped are disturbed. Disturbance will be recorded according to the three-point scale, representing increasing seal response to disturbance, shown in Table 7.
The NEFSC anticipates that additional information on practices to avoid marine mammal interactions can be gleaned from training sessions and more systematic data collection standards. The NEFSC will conduct annual trainings for all chief scientists and other personnel who may be responsible for conducting dedicated marine mammal visual observations to explain mitigation measures and monitoring and reporting requirements, mitigation and monitoring protocols, marine mammal identification, recording of count and disturbance observations (relevant to Penobscot Bay surveys), completion of datasheets, and use of equipment. Some of these topics may be familiar to NEFSC staff, who may be professional biologists; the NEFSC shall determine the agenda for these trainings and ensure that all relevant staff have necessary familiarity with these topics.
The NEFSC will also dedicate a portion of training to discussion of best professional judgment (which is recognized as an integral component of mitigation implementation; see “Mitigation”), including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful. We recognize that many factors come into play regarding decision-making at sea and that it is not practicable to simplify what are inherently variable and complex situational decisions into rules that may be defined on paper. However, it is our intent that use of best professional judgment be an iterative process from year to year, in which any at-sea decision-maker (
Improved standardization of handling procedures were discussed previously in
NEFSC will record interaction information on either existing data forms created by other NMFS programs or will develop their own standardized forms. To aid in serious injury determinations and comply with the current NMFS Serious Injury Guidelines (NMFS, 2012a, b), researchers will also answer a series of supplemental questions on the details of marine mammal interactions.
As is normally the case, NEFSC will coordinate with the relevant stranding coordinators for any unusual marine mammal behavior and any stranding, beached live/dead, or floating marine mammals that are encountered during field research activities. The NEFSC will follow a phased approach with regard to the cessation of its activities and/or reporting of such events, as described in the proposed regulatory texts following this preamble. In addition, Chief Scientists (or cruise leader, CS) will provide reports to NEFSC leadership and to the Office of Protected Resources (OPR) by event, survey leg, and cruise. As a result, when marine mammals interact with survey gear, whether killed or released alive, a report provided by the CS will fully describe any observations of the animals, the context (vessel and conditions), decisions made and rationale for decisions made in vessel and gear handling. The circumstances of these events are critical in enabling the NEFSC and OPR to better evaluate the conditions under which takes are most likely occur. We believe in the long term this will allow the avoidance of these types of events in the future.
The NEFSC will submit annual summary reports to OPR including: (1) Annual line-kilometers surveyed during which the EK60, ME70, DSM900 (or equivalent sources) were predominant; (2) summary information regarding use of all NEFSC-specific gears, including: longline (including bottom and vertical lines), gillnet, fyke net, and trawl (including bottom trawl) gear, including number of sets, hook hours, tows, etc., specific to each gear; (3) accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why; (4) summary information related to any disturbance of pinnipeds during the Penobscot Bay surveys, including event-specific total counts of animals present, counts of reactions according to the three-point scale shown in Table 7, and distance of closest approach; and (5) a written evaluation of the effectiveness of NEFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any. The period of reporting will be a one year period beginning at the date of issuance of the LOA. The NEFSC must submit the report not less than ninety days following the end of the reporting period. Submission of this
NMFS has established a formal incidental take reporting system, the Protected Species Incidental Take (PSIT) database, requiring that incidental takes of protected species be reported within 48 hours of the occurrence. The PSIT generates automated messages to NMFS staff, alerting them to the event and to the fact that updated information describing the circumstances of the event has been entered into the database. The PSIT and CS reports represent not only valuable real-time reporting and information dissemination tools but also serve as an archive of information that may be mined in the future to study why takes occur by species, gear, region, etc.
The NEFSC will also collect and report all necessary data, to the extent practicable given the primacy of human safety and the well-being of captured or entangled marine mammals, to facilitate serious injury (SI) determinations for marine mammals that are released alive. NEFSC will require that the CS complete data forms (already developed and used by commercial fisheries observer programs) and address supplemental questions, both of which have been developed to aid in SI determinations. NEFSC understands the critical need to provide as much relevant information as possible about marine mammal interactions to inform decisions regarding SI determinations. In addition, the NEFSC will perform all necessary reporting to ensure that any incidental M/SI is incorporated as appropriate into relevant SARs.
The final regulation governing the take of marine mammals incidental to NEFSC fisheries research survey operations in the specified geographical region contains an adaptive management component. The inclusion of an adaptive management component is both valuable and necessary within the context of five-year regulation for activities that have been associated with marine mammal mortality.
The reporting requirements associated with this final rule are designed to provide OPR with monitoring data from the previous year to allow consideration of whether any changes are appropriate. NMFS OPR and the NEFSC will meet annually to discuss the monitoring reports and current science and whether mitigation or monitoring modifications are appropriate. The use of adaptive management allows NMFS OPR to consider new information from different sources to determine (with input from the NEFSC regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by this regulation or subsequent LOA.
As a result of clarifying discussions with NEFSC, we made certain changes to the proposed regulations as described here. These changes are considered minor and do not affect any of our preliminary determinations.
As described in the notice of proposed rulemaking (80 FR 39546-39560; July 9, 2015), NEFSC engages in cooperative research activities and observer training that may use different gear types and vary from year to year, while remaining within the overall scope of activity described and analyzed for NEFSC. Within the scope of the proposed rule, NEFSC plans to conduct or fund observer training using pot/trap gear within the period of validity for these regulations; therefore, it is appropriate to specify mitigation measures specific to this gear type. Inclusion of mitigation measures specific to pot/trap gear does not affect any of our determinations, and does not reflect an increase in the total amount or type of activity anticipated or change in the extent or type of taking anticipated.
There are no relevant subsistence uses of marine mammals implicated by these actions, in the specified geographical region for which we are issuing this regulation. Therefore, we have determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
There are multiple marine mammal species listed under the ESA with confirmed or possible occurrence in the specified geographical region. In the Northeast Region, research surveys occur in two areas that have been designated as critical habitat for the North Atlantic right whale (NOAA, 1994). These are the Cape Cod Bay (CCB) Critical Habitat Area and the Great South Channel (GSC) Critical Habitat Area. NMFS OPR initiated consultation with NMFS' Greater Atlantic Regional Office (GARFO) under section 7 of the ESA on the promulgation of a five-year regulation and the subsequent issuance of an LOA to the NEFSC under section 7 of the ESA. In June 2016, the GARFO issued a biological opinion to OPR and the NEFSC (concerning conduct of the specified activities) which concluded that the issuance of the authorization is not likely to jeopardize the continued existence of any listed marine mammal species is not likely to adversely affect any listed marine mammal species. The opinion also concluded that the issuance of the authorization would not affect any designated critical habitat.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Per the procedures established to implement Executive Order 12866, the Office of Management and Budget has
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published with the proposed rule and is not repeated here. No comments were received regarding the economic impact of this final rule. As a result, a final regulatory flexibility analysis is not required and one was not prepared.
This rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act (PRA) because the applicant is a federal agency. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
For reasons set forth in the preamble, the NMFS amends 50 CFR part 219 as follows:
16 U.S.C. 1361
16 U.S.C. 1361
(a) Regulations in this subpart apply only to the National Marine Fisheries Service's (NMFS) Northeast Fisheries Science Center (NEFSC) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to research survey program operations.
(b) The taking of marine mammals by NEFSC may be authorized in a Letter of Authorization (LOA) only if it occurs within the Atlantic coast region.
Regulations in this subpart are effective September 12, 2016 through September 9, 2021.
(a) Under LOAs issued pursuant to § 216.106 of this chapter and § 219.7, the Holder of the LOA (hereinafter “NEFSC”) may incidentally, but not intentionally, take marine mammals within the area described in § 219.31(b) by Level B harassment associated with use of active acoustic systems and physical or visual disturbance of hauled-out pinnipeds and by Level A harassment, serious injury, or mortality associated with use of trawl, dredge, bottom and pelagic longline, gillnet, pot and trap, fyke net, beach seine, and rotary screw trap gears, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
Notwithstanding takings contemplated in § 219.31 and authorized by a LOA issued under § 216.106 of this chapter and § 219.7, no person may, in connection with the activities described in § 219.31:
(a) Take any marine mammal not specified in § 219.33(b);
(b) Take any marine mammal specified in § 219.33(b) in any manner other than as specified;
(c) Take a marine mammal specified in § 219.33(b) if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal;
(d) Take a marine mammal specified in § 219.33(b) if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses; or
(e) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 219.37.
When conducting the activities identified in § 219.31(a), the mitigation measures contained in any LOA issued under § 216.106 of this chapter and § 219.37 must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions:
(1) NEFSC shall take all necessary measures to coordinate and communicate in advance of each specific survey with the National Oceanic and Atmospheric Administration's (NOAA) Office of Marine and Aviation Operations (OMAO) or other relevant parties on non-NOAA platforms to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant event-contingent decision-making processes, are clearly understood and agreed upon.
(2) NEFSC shall coordinate and conduct briefings at the outset of each survey and as necessary between the ship's crew (Commanding Officer/master or designee(s), contracted vessel owners, as appropriate) and scientific party or in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.
(3) NEFSC shall coordinate as necessary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA platforms to ensure that requirements, procedures, and decision-making processes are understood and properly implemented.
(4) When deploying any type of sampling gear at sea, NEFSC shall at all times monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment.
(5) All vessels must comply with applicable and relevant take reduction
(6) All vessels must comply with applicable speed restrictions.
(7) NEFSC shall implement handling and/or disentanglement protocols as specified in the guidance provided to NEFSC survey personnel.
(b) Trawl survey protocols:
(1) NEFSC shall conduct trawl operations as soon as is practicable upon arrival at the sampling station.
(2) NEFSC shall initiate marine mammal watches (visual observation) prior to sampling. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.
(3) NEFSC shall implement the “move-on rule.” If a marine mammal is sighted around the vessel before setting the gear, NEFSC may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear. If, after moving on, marine mammals are still visible from the vessel, NEFSC may decide to move again or to skip the station. NEFSC may use best professional judgment in making this decision.
(4) NEFSC shall maintain visual monitoring effort during the entire period of time that trawl gear is in the water (
(5) If trawling operations have been suspended because of the presence of marine mammals, NEFSC may resume trawl operations when practicable only when the animals are believed to have departed the area. NEFSC may use best professional judgment in making this determination.
(6) NEFSC shall implement standard survey protocols to minimize potential for marine mammal interaction, including maximum tow durations at target depth and maximum tow distance, and shall carefully empty the trawl as quickly as possible upon retrieval. Trawl nets must be cleaned prior to deployment.
(c) Dredge survey protocols:
(1) NEFSC shall deploy dredge gear as soon as is practicable upon arrival at the sampling station.
(2) NEFSC shall initiate marine mammal watches (visual observation) prior to sampling. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.
(3) NEFSC shall implement the “move-on rule.” If marine mammals are sighted around the vessel before setting the gear, the NEFSC may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear. If, after moving on, marine mammals are still visible from the vessel, NEFSC may decide to move again or to skip the station. NEFSC may use best professional judgment in making this decision but may not elect to conduct dredge survey activity when animals remain near the vessel.
(4) NEFSC shall maintain visual monitoring effort during the entire period of time that dredge gear is in the water (
(5) If dredging operations have been suspended because of the presence of marine mammals, NEFSC may resume operations when practicable only when the animals are believed to have departed the area. NEFSC may use best professional judgment in making this determination.
(6) NEFSC shall carefully empty the dredge gear as quickly as possible upon retrieval to determine if marine mammals are present in the gear.
(d) Bottom and pelagic longline survey protocols:
(1) NEFSC shall deploy longline gear as soon as is practicable upon arrival at the sampling station.
(2) NEFSC shall initiate marine mammal watches (visual observation) no less than thirty minutes prior to both deployment and retrieval of the longline gear. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.
(3) NEFSC shall implement the “move-on rule.” If marine mammals are sighted near the vessel 30 minutes before setting the gear, the NEFSC may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear. If, after moving on, marine mammals are still visible from the vessel, NEFSC may decide to move again or to skip the station. NEFSC may use best professional judgment in making this decision but may not elect to conduct longline survey activity when animals remain near the vessel.
(4) For the Apex Predators Bottom Longline Coastal Shark Survey, if one or more marine mammals are observed within 1 nautical mile (nmi) of the planned location in the 30 minutes before gear deployment, NEFSC shall transit to a different section of the sampling area to maintain a minimum set distance of 1 nmi from the observed marine mammals. If, after moving on, marine mammals remain within 1 nmi, NEFSC may decide to move again or to skip the station. NEFSC may use best professional judgment in making this decision but may not elect to conduct pelagic longline survey activity when animals remain within the 1-nmi zone.
(5) NEFSC shall maintain visual monitoring effort during the entire period of gear deployment or retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, NEFSC shall take the most appropriate action to avoid marine mammal interaction. NEFSC may use best professional judgment in making this decision.
(6) If deployment or retrieval operations have been suspended because of the presence of marine mammals, NEFSC may resume such operations after there are no sightings of marine mammals for at least 15 minutes within the area or within the 1-nmi area for the Apex Predators Bottom Longline Coastal Shark Survey. NEFSC may use best professional judgment in making this decision.
(7) NEFSC shall implement standard survey protocols, including maximum soak durations and a prohibition on chumming.
(e) Gillnet survey protocols:
(1) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall deploy gillnet gear as soon as is practicable upon arrival at the sampling station.
(2) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall initiate marine mammal watches (visual observation) prior to both deployment and retrieval of the gillnet gear. When the vessel is on station during the soak, marine mammal watches shall be
(3) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall implement the “move-on rule.” If marine mammals are sighted near the vessel before setting the gear, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains, may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear. If, after moving on, marine mammals are still visible from the vessel, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains may decide to move again or to skip the station. The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains may use best professional judgment in making this decision but may not elect to conduct the gillnet survey activity when animals remain near the vessel.
(4) If marine mammals are sighted near the vessel during the soak and are determined to be at risk of interacting with the gear, then the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall carefully retrieve the gear as quickly as possible. The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains may use best professional judgment in making this decision.
(5) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall implement standard survey protocols, including continuously monitoring the gillnet gear during soak time and removing debris with each pass as the net is reset into the water to minimize bycatch.
(6) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall ensure that surveys deploy acoustic pingers on gillnets in areas where required for commercial fisheries. NEFSC must ensure that the devices are operating properly before deploying the net.
(7) NEFSC shall ensure that cooperating institutions, contracted vessels, or commercially-hired captains conducting gillnet surveys adhere to monitoring and mitigation requirements and shall include required protocols in all survey instructions, contracts, and agreements.
(8) For the COASTSPAN gillnet surveys, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains will actively monitor for potential bottlenose dolphin entanglements by hand-checking the gillnet every 20 minutes. In the unexpected case of a bottlenose dolphin entanglement, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall request and arrange for expedited genetic sampling for stock determination. The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall also photograph the dorsal fin and submit the image to the NMFS Southeast Stranding Coordinator for identification/matching to bottlenose dolphins in the Mid-Atlantic Bottlenose Dolphin Photo-identification Catalog.
(f) Pot and trap survey protocols:
(1) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall deploy pot gear as soon as is practicable upon arrival at the sampling station.
(2) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall initiate marine mammal watches (visual observation) no less than 30 minutes prior to both deployment and retrieval of the pot and trap gear. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.
(3) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall implement the move-on rule. If marine mammals are sighted near the vessel before setting the gear, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains, as appropriate, may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear. If, after moving on, marine mammals are still visible from the vessel, the NEFSC, and/or its cooperating institutions, contracted vessels, or commercially-hired captains may decide to move again or to skip the station. The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains may use best professional judgment in making this decision but may not elect to conduct the pot and trap activity when animals remain near the vessel.
(4) If marine mammals are sighted near the vessel during the soak and are determined to be at risk of interacting with the gear, then the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall carefully retrieve the gear as quickly as possible. The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains may use best professional judgment in making this decision.
(5) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall ensure that surveys deploy gear fulfilling all Pot/Trap universal commercial gear configurations such as weak link requirements and marking requirements as specified by applicable take reduction plans as required for commercial pot/trap fisheries.
(6) The NEFSC shall ensure that its cooperating institutions, contracted vessels, or commercially-hired captains conducting pot and trap surveys adhere to monitoring and mitigation requirements and shall include required protocols in all survey instructions, contracts, and agreements.
(g) Fyke net gear protocols:
(1) NEFSC shall conduct fyke net gear deployment as soon as is practicable upon arrival at the sampling station.
(2) NEFSC shall visually survey the area prior to both deployment and retrieval of the fyke net gear. NEFSC shall conduct monitoring and retrieval of the gear every 12- to 24-hour soak period.
(3) If marine mammals are in close proximity (approximately 328 feet [100 meters]) of the setting location, NEFSC shall determine if the set location should be moved. NEFSC may use best professional judgment in making this decision.
(4) If marine mammals are observed to interact with the gear during the setting, NEFSC shall lift and remove the gear from the water.
(5) NEFSC must install and use a marine mammal excluder device at all times when the 2-meter fyke net is used.
(h) Beach seine gear protocols:
(1) NEFSC shall conduct beach seine deployment as soon as is practicable upon arrival at the sampling station.
(2) NEFSC shall visually survey the area prior to both deployment and retrieval of the seine net gear.
(3) If marine mammals are in close proximity of the seining location, NEFSC shall lift the net and remove it from the water. NEFSC may use best professional judgment in making this decision.
(i) Rotary screw trap gear protocols:
(1) NEFSC shall conduct rotary screw trap deployment as soon as is
(2) NEFSC shall visually survey the area prior to both setting and retrieval of the rotary screw trap gear. If marine mammals are observed in the sampling area, NEFSC shall suspend or delay the sampling. NEFSC may use best professional judgment in making this decision.
(3) NEFSC shall tend to the trap on a daily basis to monitor for marine mammal interactions with the gear.
(4) If the rotary screw trap captures a marine mammal, NEFSC shall carefully release the animal as soon as possible.
(a) Visual monitoring program:
(1) Marine mammal visual monitoring shall occur: prior to deployment of beam, mid-water, and bottom trawl, bottom and pelagic longline, gillnet, fyke net, beach seine, pot, trap, and rotary screw trap gear; throughout deployment of gear and active fishing of all research gears; and throughout retrieval of all research gear.
(2) Marine mammal watches shall be conducted by watch-standers (those navigating the vessel and/or other crew) at all times when the vessel is being operated.
(3) NEFSC shall monitor any potential disturbance of pinnipeds on ledges, paying particular attention to the distance at which different species of pinniped are disturbed. Disturbance shall be recorded according to a three-point scale of response (
(b) The NEFSC shall continue to conduct a local census of pinniped haulout areas prior to conducting any fisheries research in the Penobscot River estuary to better understand the local abundance of animals. The NEFSC's census reports will now include an accounting of disturbance based on the three-point scale of response severity metrics.
(c) Training:
(1) NEFSC must conduct annual training for all chief scientists and other personnel (including its cooperating institutions, contracted vessels, or commercially-hired captains) who may be responsible for conducting dedicated marine mammal visual observations to explain mitigation measures and monitoring and reporting requirements, mitigation and monitoring protocols, marine mammal identification, completion of datasheets, and use of equipment. NEFSC may determine the agenda for these trainings.
(2) NEFSC shall also dedicate a portion of training to discussion of best professional judgment, including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful.
(3) NEFSC shall coordinate with NMFS' Southeast Fisheries Science Center (SEFSC) regarding surveys conducted in the southern portion of the Atlantic coast region, such that training and guidance related to handling procedures and data collection is consistent.
(d) Handling procedures and data collection:
(1) NEFSC must develop and implement standardized marine mammal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS Office of Protected Resources (OPR).
(2) When practicable, for any marine mammal interaction involving the release of a live animal, NEFSC shall collect necessary data to facilitate a serious injury determination.
(3) NEFSC shall provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring/or not bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction.
(4) NEFSC shall record such data on standardized forms, which will be subject to approval by OPR. The data shall be collected at a sufficient level of detail (
(e) Reporting:
(1) NEFSC shall report all incidents of marine mammal interaction to NMFS' Protected Species Incidental Take database within 48 hours of occurrence.
(2) NEFSC shall provide written reports to OPR upon request following any marine mammal interaction (animal captured or entangled in research gear). In the event of a marine mammal interaction, these reports shall include details of survey effort, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made and rationale for decisions made in vessel and gear handling.
(3) Annual reporting:
(i) The period of reporting will be one year beginning at the date of issuance of the LOA. NEFSC shall submit an annual summary report to OPR not later than ninety days following the end of the reporting period.
(ii) These reports shall contain, at minimum, the following:
(A) Annual line-kilometers surveyed during which the EK60, ME70, DSM300 (or equivalent sources) were predominant and associated pro-rated estimates of actual take;
(B) Summary information regarding use of the following: All trawl gear, all longline gear, all gillnet gear, all dredge gear, fyke net gear, beach seine net gear, and rotary screw trap gear (including number of sets, hook hours, tows, and tending frequency specific to each gear type);
(C) Accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why;
(D) Summary information from the pinniped haulout censuses in the and summary information related to any disturbance of pinnipeds, including event-specific total counts of animals present, counts of reactions according to a three-point scale of response severity (1 = alert; 2 = movement; 3 = flight), and distance of closest approach;
(E) A written evaluation of the effectiveness of NEFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any;
(F) Final outcome of serious injury determinations for all incidents of marine mammal interactions where the animal(s) were released alive; and
(G) A summary of all relevant training provided by the NEFSC and any coordination with the Southeast Fishery Science Center, the Greater Atlantic Regional Office, and the Southeast Regional Office, NMFS.
(f) Reporting of injured or dead marine mammals:
(1) In the unanticipated event that the specified activity clearly causes the take of a large whale (
(2) In the unanticipated event that the activity defined in § 219.31(a) clearly causes the take of a marine mammal in a prohibited manner, NEFSC and/or its cooperating institution personnel engaged in the research activity shall immediately cease such activity until such time as an appropriate decision regarding activity continuation can be made by the NEFSC Director (or designee). For large whales, the NEFSC and/or its cooperating institutions must first contact the hotline numbers or the USCG as outlined in paragraph (f)(1) of this section. The NEFSC must also report the incident immediately to OPR, the Greater Atlantic Regional Stranding Coordinator, and the Southeast Regional Stranding Coordinator, NMFS. OPR will review the circumstances of the prohibited take and work with NEFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident;
(iii) Environmental conditions (including wind speed and direction, Beaufort sea state, cloud cover, and visibility);
(iv) Description of all marine mammal observations in the 24 hours preceding the incident;
(v) Species identification or description of the animal(s) involved;
(vi) Status of all sound source use in the 24 hours preceding the incident;
(vii) Water depth;
(viii) Fate of the animal(s); and
(ix) Photographs or video footage of the animal(s).
(3) In the event that NEFSC and/or its cooperating institutions discover an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (
(4) In the event that NEFSC and/or its cooperating institutions discover an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 219.31(a) (
(a) To incidentally take marine mammals pursuant to these regulations, NEFSC must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, NEFSC may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, NEFSC must apply for and obtain a modification of the LOA as described in § 219.38.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in the
(a) An LOA issued under § 216.106 of this chapter and § 219.37 for the activity identified in § 219.31(a) shall be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), and
(2) OPR determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the
(c) An LOA issued under § 216.106 of this chapter and § 219.37 for the activity identified in § 219.31(a) may be modified by OPR under the following circumstances:
(1) Adaptive Management—OPR may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with NEFSC regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from NEFSC's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or studies.
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are
(2) Emergencies—If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 219.32(b), an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class D and Class E surface area airspace at Sugar Land Regional Airport, Houston Sugar Land, TX. The FAA also proposes to modify Class E airspace extending upward from 700 feet above the surface at Kingsville Kleberg County Airport, Alice, TX; Bay City Municipal Airport, Bay City, TX; Brenham Municipal Airport, Brenham, TX; Burnet Municipal Airport-Kate Craddock Field, Burnet, TX; Brooks County Airport, Falfurrias, TX; Possum Kingdom Airport, Graford, TX; and Hamilton Municipal Airport, Hamilton, TX. Decommissioning of non-directional radio beacons (NDBs), cancellation of NDB approaches, and implementation of area navigation (RNAV) procedures have made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at these airports. This action also proposes to remove Class E airspace at Horseshoe Bay Resort Airport, Austin, TX, as controlled airspace is no longer needed. Additionally, the geographic coordinates at Bay City Municipal Airport, Brenham Municipal Airport, and Brooks County Airport, as well as the name of Sugar Land Regional Airport (formerly Sugar Land Municipal/Hull Field) would be adjusted to coincide with the FAA's aeronautical database.
Comments must be received on or before September 26, 2016.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, 20590; telephone (202) 366-9826, or 1-800-647-5527. You must identify FAA Docket No. FAA-2016-8503; Airspace Docket No. 16-ASW-11, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX, 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class D airspace and Class E surface area airspace at Sugar Land Regional Airport, Houston Sugar Land, TX; amend Class E airspace extending upward from 700 feet above the surface at Kingsville Kleberg County Airport, Alice, TX; Bay City Municipal Airport, Bay City, TX; Brenham Municipal Airport, Brenham, TX; Burnet Municipal Airport-Kate Craddock Field, Burnet, TX; Brooks County Airport, Falfurrias, TX; Possum Kingdom Airport, Graford, TX; and Hamilton Municipal Airport, Hamilton, TX; and remove Class E at Horseshoe Bay Resort Airport, Austin, TX.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-8503/Airspace Docket No. 16-ASW-11.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying:
Class D airspace and Class E surface area airspace within a 5.8-mile radius of Sugar Land Regional Airport, Houston Sugar Land, TX, and updating the name of airport to coincide with the FAA's aeronautical database;
Class E airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Kingsville, Kleberg County Airport, Alice, TX, with an extension northwest of the airport from the 6.6-mile radius to 10.3 miles;
Within a 6.5-mile radius of Bay City Municipal Airport, Bay City, TX, and updating the geographic coordinates of the airport to coincide with the FAAs aeronautical database;
Within a 6.5-mile radius of Brenham Municipal Airport, Brenham TX, and updating the geographic coordinates of the airport to coincide with the FAAs aeronautical database;
Within a 6.6-mile radius of the Burnet Municipal Airport-Kate Craddock Field, Burnet, TX;
Within a 6.6-mile radius of Brooks County Airport, Falfurrias, TX, and updating the geographic coordinates of the airport to coincide with the FAAs aeronautical databases;
Within a 7.0-mile radius of Possum Kingdom Airport, Graford, TX, with extensions to the northeast of the airport from the 7.0-mile radius to 10.9 miles, and to the southwest of the airport from the 7.0-mile radius to 10.9 miles;
And within a 6.5-mile radius of Hamilton Municipal Airport, Hamilton, TX, with extensions to the north of the airport from the 6.5-mile radius to 9.4 miles, and to the south of the airport from the 6.5-mile radius to 10.3 miles;
The Class E airspace area extending upward from 700 feet above the surface within a 6.5-mile radius of Horseshoe Bay Resort Airport, Austin Horseshoe Bay Resort Airport, TX, would be removed as the SIAPs have been cancelled and controlled airspace is no longer needed.
Airspace reconfiguration is necessary due to the decommissioning of NDBs, cancellation of NDB approaches, and implementation of RNAV procedures at the above airports. Controlled airspace is necessary for the safety and management of the standard instrument approach procedures for IFR operations at the airports.
Class D and E airspace designations are published in paragraph 5000, 6002, and 6005, respectively, of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 2,600 feet MSL within a 5.8-mile radius of Sugar Land Regional Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Within a 5.8-mile radius of Sugar Land Regional Airport. This Class E airspace is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from 700 feet above the surface within a 7.5-mile radius of Alice International Airport, and within 2 miles each side of the 135° bearing from Alice International Airport extending from the 7.5-mile radius to 9.8 miles southeast of the airport, and within a 7.2-mile radius of the Orange Grove NALF, and within 1.6 miles each side of the 129° radial of the Navy Orange Grove TACAN extending from the 7.2-mile radius of the Orange Grove NALF to 11 miles southeast of the Orange Grove NALF, and within 1.5 miles each side of the 320° radial of the Navy Orange Grove TACAN extending from the 7.2-mile radius of the Orange Grove NALF to 9.7 miles northwest of the Orange Grove NALF, and within a 6.6-mile radius of Kleberg County Airport, and within 4.0 miles each side of the 320° bearing from the Kleberg County Airport from the 6.6-mile radius to 10.3 miles northwest of the airport, excluding that airspace within the Corpus Christi, TX, Class E airspace area.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Bay City Municipal Airport.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Brenham Municipal Airport.
That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Burnet Municipal Airport-Kate Craddock Field.
That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Brooks County Airport.
That airspace extending upward from 700 feet above the surface within a 7.0-mile radius of Possum Kingdom Airport and within 4 miles each side of the 031° bearing from the airport extending from the 7.0-mile radius to 10.9 miles northeast of the airport, and within 4 miles each side of the 210° bearing from the airport extending from the 7.0-mile radius to 10.9 miles southwest of the airport.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Hamilton Municipal Airport, and within 2 miles each side of the 009° bearing from the airport extending from the 6.5-mile radius to 9.4 miles north of the airport, and within 2 miles each side of the 189° bearing from the airport extending from the 6.5-mile radius to 10.3 miles south of the airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class E airspace extending upward from 700 feet above the surface at Langlade County Airport, Antigo, WI; John F. Kennedy Memorial Airport, Ashland, WI; Black River Falls Area Airport, Black River Falls, WI; Cable Union Airport, Cable Union, WI; Cumberland Municipal Airport, Cumberland, WI; Eagle River Union Airport, Eagle River, WI; Sawyer County Airport, Hayward, WI; and Wausau Downtown Airport, Wausau, WI. Decommissioning of non-directional radio beacon (NDB), cancellation of NDB approaches, and implementation of area navigation (RNAV) procedures have made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the above airports. This action also proposes to remove Class E surface area airspace at Wausau Municipal Airport (Wausau Downtown Airport), Wausau, WI, as a review has determined that the airport no longer meets the requirements for this airspace. Additionally, the geographic coordinates at Langlade County Airport, John F. Kennedy Memorial Airport, Cumberland Municipal Airport, Eagle River Union Airport, and Wausau Downtown Airport (formerly Wausau Municipal Airport) would be adjusted to coincide with the FAAs aeronautical database.
Comments must be received on or before September 26, 2016.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826, or 1-800-647-5527. You must identify FAA Docket No. FAA-2016-8557; Airspace Docket No. 16-AGL-17, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX, 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace extending upward from 700 feet above the surface at Langlade County Airport, Antigo, WI; John F. Kennedy Memorial Airport, Ashland, WI; Black River Falls Area Airport, Black River Falls, WI; Cable Union Airport, Cable Union, WI; Cumberland Municipal Airport, Cumberland, WI; Eagle River Union Airport, Eagle River, WI; Sawyer County Airport, Hayward, WI; and Wausau Downtown Airport, Wausau, WI; and remove Class E surface area airspace at Wausau Downtown Airport (formerly Wausau Municipal Airport), Wausau, WI.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-8557/Airspace Docket No. 16-AGL-17.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface:
Within a 6.5-mile radius of Langlade County Airport, Antigo, WI, and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database;
Within a 7.0-mile radius of John F. Kennedy Memorial Airport, Ashland, WI, with an extension southwest of the airport from the 7.0-mile radius to 8.2 miles, and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database;
Within a 7.1-mile radius of Black River Falls Area Airport, Black River Falls, WI, with an extension southwest of the airport from the 7.1-mile radius to 11.7 miles, with an extension northeast of the airport from the 7.1-mile radius to 11.4 miles;
Within a 6.9-mile radius of Cable Union Airport, Cable Union, WI;
Within a 6.4-mile radius of Cumberland Municipal Airport, Cumberland, WI, with extensions from the 6.4-mile radius to 10.2 miles west and east; and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database;
Within a 6.5-mile radius of Eagle River Union Airport, Eagle River, WI, with an extension southwest of the airport from the 6.5-mile radius to 9.2 miles, and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database;
Within a 6.6-mile radius of Sawyer County Airport, Hayward, WI, with an extension northeast of the airport from the 6.6-mile radius to 8.5 miles;
And within a 6.8-mile radius of Wausau Downtown Airport, Wausau, WI, and updating the name and geographic coordinates of the airport to coincide with the FAA's aeronautical database.
The Class E airspace designated as a surface area at Wausau Municipal Airport, Wausau, WI, would be removed as the airport no longer meets the requirements for this airspace.
Airspace reconfiguration is necessary due to the decommissioning of NDBs, cancellation of NDB approaches, and implementation of RNAV procedures at the above airports. Controlled airspace is necessary for the safety and management of the standard instrument approach procedures for IFR operations at the airports.
Class E airspace designations are published in paragraphs 6002 and 6005, respectively, of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F,
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Langlade County Airport.
That airspace extending upward from 700 feet above the surface within a 7.0-mile radius of John F. Kennedy Memorial Airport, and within 2.9 miles each side of the 201° bearing from the airport extending from the 7.0-mile radius to 8.2 miles southwest of the airport.
That airspace extending upward from 700 feet above the surface within a 7.1-mile radius of Black River Falls Area Airport, and within 2 miles each side of the 081° bearing from the airport extending from the 7.1-mile radius to 11.4 miles east of the airport, and within 2 miles each side of the 260° bearing from the airport extending from the 7.1-mile radius to 11.7 miles west of the airport.
That airspace extending upward from 700 feet above the surface within a 6.9-mile radius of Cable Union Airport.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Cumberland Municipal Airport, and within 2 miles each side of the 091° bearing from the airport extending from the 6.4-mile radius to 10.2 miles east of the airport, and within 2 miles each side of the 270° bearing from the airport extending from the 6.4-mile radius to 10.2 miles west of the airport.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Eagle River Union Airport, and within 2 miles each side of the 225° bearing from the airport extending from the 6.5-mile radius to 9.2 miles southwest of the airport.
That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Sawyer County Airport, and within 2 miles each side of the 025° bearing from the airport extending from the 6.6-mile radius to 8.5 miles northeast of the airport.
That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of Wausau Downtown Airport.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Supplemental notice of proposed rulemaking.
On May 19, 2016, HUD published in the
Interested persons are invited to submit comments regarding this notice to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title.
1.
2.
To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the document.
Public Inspection of Public Comments. All properly submitted comments and communications submitted to HUD will be available for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the toll-free Federal Relay Service at 800-877-8339. Copies of all comments submitted are available for inspection and downloading at
Karin Hill, Senior Policy Advisor, Office of Single Family Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 9282, Washington, DC 20410; telephone number 202-402-3084 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number through TTY by calling the toll- free Federal Relay Service at 800-877-8339.
On May 19, 2016, at 81 FR 31769, HUD published a document that proposed to amend its regulations, at 24 CFR parts 30 and 206, that govern HUD's reverse mortgage program, called the Home Equity Conversion Mortgage (HECM) program. The HECM program allows eligible borrowers, 62 years of age or older, to convert the equity in their homes into liquid assets. The withdrawal of equity may take a variety of forms, as authorized by the National Housing Act (NHA) and selected by the borrower. The home, which serves as security for the FHA-insured mortgage, must be, and must continue to be, the borrower's principal residence during the life of the borrower. For adjustable interest rate HECMs, equity payments to the borrower may be in the form of monthly disbursements for life or a fixed term of years, disbursements from a line of credit advance or a combination of monthly disbursements and a line of credit. For fixed interest rate HECMs, equity payments to the borrower must be in the form of a single lump sum disbursement at closing.
The maximum amount of equity in the home that is available to a borrower under a HECM loan is the “principal limit” that is calculated for that loan. The borrower retains ownership of the property and may sell the home at any time keeping any residual sale proceeds in excess of the outstanding loan balance. Until the mortgage is repaid, and regardless of whether or not additional disbursements under the mortgage are permissible, interest on the mortgage, mortgage insurance premiums, and servicing charges, where applicable, continue to accrue.
The subject of this document regards the mortgagee's election of the assignment option as provided in § 206.107(a). This section gives the mortgagee an option, before the mortgage is submitted for insurance endorsement, to select either: (1) The assignment option, which allows the mortgagee to assign the HECM to the Secretary if the mortgage balance is equal to or greater than 98 percent of the maximum claim amount; or (2) the shared premium option, which allows the mortgagee to retain a portion of the monthly mortgage insurance premiums (MIP) but does not allow the mortgagee to assign the mortgage unless the mortgagee fails to make payments and the Secretary demands assignment. Under the assignment option, the mortgagee may only assign the mortgage to the Secretary if the following are also true: (1) The mortgagee is current in making the required payments to the mortgagor; (2) the mortgagee is current in making the required MIP payments to the Secretary; (3) the mortgage is not due and payable; and (4) the mortgage is a first lien of record and title to the property securing the mortgage is good and marketable.
The May 19, 2016, proposed rule proposed to codify a number of changes that had been implemented through mortgagee letters under the authority of the Housing and Economic Recovery Act of 2008 (Pub. L. 110-289, approved July 30, 2008) (HERA) and the Reverse Mortgage Stabilization Act of 2013 (Pub. L. 113-29, approved August 9, 2013) (RMSA).
The public comment period on the proposed rule closed on July 18, 2016. All public comments submitted to date can be found at
Through this document, HUD solicits public comment solely on the issue of requiring mortgagees to file a claim when the HECM loan reaches 98 percent of the maximum claim amount. If HUD were to implement this proposal, HUD would amend § 206.107(a) to require the mortgagee to assign the mortgage to the Commissioner if the mortgage balance is equal to or greater than 98 percent of the maximum claim amount, or the mortgagor has requested a payment which exceeds the difference between the maximum claim amount and the mortgage balance.
By proposing the change to the assignment option suggested by the public commenter, HUD would not alter the other proposed changes to
HUD is soliciting public comment solely on this proposal for a period of 30 days.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing revisions to correct an equation in an appendix in the National Ambient Air Quality Standards (NAAQS) for Particle Pollution. In the “Rules and Regulations” section of the
Written comments must be received by September 12, 2016.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2016-0408, to the
Mr. Brett Gantt, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Air Quality Analysis Group (Mail Code: C304-04), Research Triangle Park, NC 27711; telephone number: (919) 541-5274; fax number: (919) 541-3613; email address:
This document proposes a revision in appendix N to correct a scrivener's error in an intermediate equation in the calculation of the annual PM
If we receive no adverse comment, we will not take further action on this proposed rule. If we receive 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
This action applies to you if you are calculating the annual PM
The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This rule does not relax the calculation of the annual PM
For a complete discussion of the administrative requirements applicable to this action, see the direct final rule in the “Rules and Regulations” section of this
Air pollution control, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
For the reasons stated in the preamble, the Environmental Protection Agency proposes to amend title 40, chapter I of the Code of Federal Regulations as follows:
42 U.S.C. 7401
(b) * * *
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to disapprove severable portions of the February 6, 2012, Oklahoma State Implementation Plan (SIP) submittal that establish certain
Written comments must be received on or before September 12, 2016.
Submit your comments, identified by Docket No. EPA-R06-OAR-2012-0263, at
Adina Wiley, (214) 665-2115,
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
Section 110 of the CAA requires states to develop and submit to the EPA a SIP to ensure that state air quality meets National Ambient Air Quality Standards (NAAQS). These ambient standards currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. Each federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin through air pollution regulations and control strategies. The EPA approved SIP regulations and control strategies are federally enforceable.
Under Section 165(a) of the CAA, a major source may not commence construction unless the source has been issued a permit and has satisfied certain requirements. Among those requirements, the permit applicant must demonstrate that emissions from construction or operation of the facility will not cause, or contribute to, air pollution in excess of any increment, NAAQS, or any other applicable emission standard of performance. This statutory requirement has been incorporated into federal regulations at 40 CFR 51.166(k)(1). Moreover, to support this analysis, PSD permit applications must contain air quality monitoring data representing air quality in the area affected by the proposed source for the 1-year period preceding receipt of the application. This statutory requirement has been incorporated into federal regulations at 40 CFR 51.166(m)(ii)-(iv).
In 2010, the EPA promulgated regulations for SIPs concerning PSD permitting for PM
Sierra Club filed a petition for review of the PSD regulations containing the PM
In response to the Court's decision, the EPA amended its regulations to remove the affected PM
On February 6, 2012, Oklahoma submitted revisions to its PSD SIP at OAC 252:100-8-33(c)(1)(C) that adopted provisions substantively identical to the EPA PSD SIP's requirement for PM
Our analysis, available in our TSD, finds that the State of Oklahoma adopted and submitted on February 6, 2012, revisions to the Oklahoma SIP that were substantively consistent with the voluntary exemptions from PSD monitoring at 40 CFR 51.166(i)(5)(i) and the requirements for a source impact analysis at 40 CFR 51.166(k)(2) promulgated on October 20, 2010. Subsequent to the submittal of these provisions, the Court vacated and remanded these provisions to the EPA. On December 9, 2013, we promulgated revisions to the PSD SIP rules that removed the vacated PM
Disapproval of the submitted PM
Disapproval of the submitted PM
The EPA has an obligation under section 110 of the CAA to act on submitted SIP revisions unless these revisions are withdrawn by the State. Therefore, the EPA has a duty to act on the submitted Oklahoma provisions pertaining to the PM
We are proposing to disapprove severable portions of the February 6, 2012, Oklahoma SIP submittal establishing the voluntary PM
• Substantive revisions to the Oklahoma SIP at OAC 252:100-8-33(c)(1)(C) establishing the PM
• Substantive revisions to the Oklahoma PSD program in OAC 252:100-8-35(a)(2) establishing the PM
The EPA is proposing to disapprove the revisions listed because the submitted provisions are inconsistent with the federal statutory and regulatory permitting requirements for PM
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA. There is no burden imposed under the PRA because this action proposes to disapprove submitted revisions that are no longer consistent with federal laws and regulations for the regulation and permitting of PM
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action proposes to disapprove submitted revisions that are no longer consistent with federal laws and regulations for the regulation and permitting of PM
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. This action proposes to disapprove submitted revisions that are no longer consistent with federal laws and regulations for the regulation and permitting of PM
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. This action proposes to disapprove provisions of state law that are no longer consistent with federal law for the regulation and permitting of PM
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 disapproves state permitting provisions that are inconsistent with federal laws and regulations for the regulation and permitting of PM
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 the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action is not subject to Executive Order 12898 because it disapproves state permitting provisions that are inconsistent with federal laws and regulations for the regulation and permitting of PM
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The State of Arkansas has applied to EPA for Final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA proposes to grant Final authorization to the State of Arkansas. In the “Rules and Regulations” section
Send your written comments by September 12, 2016.
Submit any comments identified by Docket ID No. EPA-R06-RCRA-2016-0176, by one of the following methods:
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2.
3.
4.
Alima Patterson, Region 6, Regional Authorization Coordinator, RCRA Permits Section (RPM), Multimedia Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, (214) 665-8533 and Email address
For additional information, please see the direct final published in the “Rules and Regulations” section of today's
Defense Acquisition Regulations System, Department of Defense (DoD).
Proposed rule.
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement sections of the National Defense Authorization Acts for Fiscal Years 2013 and 2016 relating to commercial item acquisitions.
Comments on the proposed rule should be submitted in writing to the address shown below on or before October 11, 2016, to be considered in the formation of a final rule.
Submit comments identified by DFARS Case 2016-D006, using any of the following methods:
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Comments received generally will be posted without change to
Mr. Mark Gomersall, telephone 571-372-6099.
DoD is proposing to amend the DFARS to implement the requirements of sections 851 through 853 and 855 through 857 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92, enacted November 25, 2015), as well as the requirements of section 831 of the NDAA for FY 2013 (Pub. L. 112-239, enacted January 2, 2013). This rule also provides guidance to contracting officers to promote consistency and uniformity in the acquisition process.
On August 3, 2015, DoD published proposed DFARS rule 2013-D034 to implement the requirements of section 831 (80 FR 45918). Based on the comments received in response to that proposed rule, and in order to implement the requirements in sections 851 through 853 and 855 through 857 of the NDAA for FY 2016, DFARS rule
This rule proposes to amend the DFARS as follows:
1. Definitions of “market prices,” “market research,” “nontraditional defense contractor,” “relevant sales data,” and “uncertified cost data” are added.
2. DFARS 212.102, Applicability, is amended to instruct contracting officers on the treatment of prior commercial item determinations and nontraditional defense contractors.
3. DFARS 212.209, Determination of price reasonableness, is added to provide a hierarchy of data for contracting officers to consider when making determinations of price reasonableness.
4. DFARS subpart 212.72, Limitation on conversion of procurement from commercial acquisition procedures, is added.
5. DFARS 215.402, Pricing policy, is amended to provide information regarding the contracting officer's responsibility for determining if the information provided by the offeror is sufficient to determine price reasonableness.
6. DFARS 215.403-1, Prohibition on obtaining certified cost or pricing data (10 U.S.C. 2306a and 41 U.S.C. chapter 35), is amended to provide a reference to 212.102 regarding prior commercial item determinations.
7. DFARS 215.404-1, Proposal analysis techniques, is amended to supplement the proposal analysis procedures identified in the FAR.
8. DFARS 234.7002, Policy, is amended to incorporate the revisions in section 852 of the NDAA for FY 2016.
9. DFARS 239.101, Policy, is amended to incorporate the revisions in section 855 of the NDAA for FY 2016.
10. DFARS provisions 252.215-70XX, 252.215-70YY, and 252.215-70ZZ are added.
Fourteen respondents submitted comments in response to proposed DFARS rule 2013-D034. The major issues identified by the respondents in response to DFARS rule 2013-D034 are addressed as follows under this proposed rule:
The objective of this proposed rule is to implement section 831 of the NDAA for FY 2013 (Pub. L. 112-239) and sections 851 through 853 and 855 through 857 of the NDAA for FY 2016 (Pub. L. 114-92). Sections 831, 851, and 853 address requirements related to commercial acquisitions. Specifically, section 831 provides guidance and training related to evaluation of price reasonableness and requirements for requests for uncertified cost information for the purposes of evaluating price reasonableness. Section 851 provides that a contracting officer may presume that a prior DoD commercial item determination made by DoD shall service as a determination for subsequent procurements of such items. Section 853 provides that a contracting officer shall consider evidence provided by an offeror of recent purchase prices paid by the Government for the same or similar commercial items when establishing price reasonableness, subject to certain conditions.
41 U.S.C. 1905 governs the applicability of laws to contracts or subcontracts in amounts not greater than the SAT. It is intended to limit the applicability of laws to such contracts or subcontracts. 41 U.S.C. 1905 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT, the law will apply to them. The Director, Defense Procurement and Acquisition Policy (DPAP), is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations.
41 U.S.C. 1906 governs the applicability of laws to contracts for the acquisition of commercial items, and is intended to limit the applicability of laws to contracts for the acquisition of commercial items. 41 U.S.C. 1906 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt commercial item contracts, the provision of law will apply to contracts for the acquisition of commercial items. Likewise, 41 U.S.C. 1907 governs the applicability of laws to COTS items, with the Administrator for the Office of Federal Procurement Policy the decision authority to determine that it is in the best interest of the Government to apply a provision of law to acquisitions of COTS items in the FAR. The Director, DPAP, is the appropriate authority to make comparable determinations for regulations to be published in the DFARS, which is part of the FAR system of regulations.
To implement section 831 of the NDAA for FY 2013 and sections 851 and 853 of the NDAA for FY 2016, DoD is proposing three new DFARS provisions: DFARS 252.215-70XX, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data; DFARS 252.215-70YY, Requirements for Submission of Proposals to the Administrative Contracting Officer and Contract Auditor; and 252.215-70ZZ, Requirements for Submission of Proposals via Electronic Media.
DFARS 252.215-70XX allows for offerors to submit a written request for an exception from the requirement to submit certified cost or pricing data, by submitting specific information to support a commercial item exception or an exception based on prices set by law or regulation. DFARS 252.215-70YY and DFARS 252.215-70ZZ are only used in conjunction with DFARS 252.215-70XX and only specify when a proposal is required to be submitted to the administrative contracting officer or cost auditor or if submission of the cost portion is required via certain electronic media.
Given that section 831 of the NDAA for FY 2013 and sections 851 and 853 of the NDAA for FY 2016 were enacted to address requirements related to the treatment of commercial items and submission of uncertified cost or pricing data to support evaluations of price reasonableness for commercial items, DoD intends to determine that it is in the best interest of the Federal Government to apply the rule to contracts for the acquisition of commercial items, including COTS items. An exception for contracts for the acquisition of commercial items, including COTS items, would exclude the contracts intended to be covered by the law, thereby undermining the overarching public policy purpose of the law. DoD does not intend to make a determination to apply the requirements to acquisitions below the SAT.
Executive Orders (E.O.s) 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
This rule proposes to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to provide additional guidance concerning commercial item determinations and the appropriate amount and type of other than certified cost or pricing information that contracting officers must require an offeror to submit in order to determine whether proposed prices for commercial items are fair and reasonable.
The objective of this rule is to implement the requirements of sections 851 through 853 and 855 through 857 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92, enacted November 25, 2015), as well as the requirements of section 831 of the NDAA for FY 2013 (Pub. L. 112-239, enacted January 2, 2013).
According to data available in the Federal Procurement Data System for fiscal year 2015, DoD awarded 51,796 contracts to 21,073 unique vendors using commercial procedures. Of those contracts, 29,637 contracts (approximately 57%) were awarded to 14,286 unique small businesses (approximately 68%).
This proposed rule does not impose any reporting, recordkeeping, or other compliance requirements, because the
The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternative approaches to the rule that would meet the requirements.
DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2016-D006), in correspondence.
This proposed rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, 48 CFR parts 202, 212, 215, 234, 239, and 252 are proposed to be amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
As used in this part—
The additions read as follows:
(a)(i)
(ii) Follow the procedures at PGI 212.102(a) regarding file documentation.
(iii)
(A) The contracting officer may presume that a prior commercial item determination made by a military department, a defense agency, or another component of DoD shall serve as a determination for subsequent procurements of such item.
(B) If the contracting officer does not make the presumption described in paragraph (a)(iii)(A) of this section and instead chooses to proceed with a procurement of an item previously determined to be a commercial item using procedures other than the procedures authorized for the procurement of a commercial item, the contracting officer shall request a review of the commercial item determination by the head of the contracting activity that will conduct the procurement.
(C) Not later than 30 days after receiving a request for review of a commercial item determination under paragraph (a)(iii)(B) of this section, the head of a contracting activity shall—
(1) Confirm that the prior determination was appropriate and still applicable; or
(2) Issue a revised determination with a written explanation of the basis for the revision (see 212.72).
(iv)
(a) Market research shall be used, where appropriate, to inform price reasonableness determinations.
(b) If the contracting officer determines that the information obtained through market research pursuant to paragraph (a) of this section, is insufficient to determine the reasonableness of price, the contracting officer shall consider information submitted by the offeror of recent purchase prices paid by the Government or commercial customers for the same or similar commercial items under comparable terms and conditions in establishing price reasonableness on a subsequent purchase if the contracting officer is satisfied that the prices previously paid remain a valid reference for comparison. The contracting officer shall consider the totality of other relevant factors such as the time elapsed since the prior purchase and any differences in the quantities purchased (10 U.S.C. 2306a(b)).
(c) If the contracting officer determines that the offeror cannot provide sufficient information as described in paragraph (b) of this section to determine the reasonableness of price, the contracting officer should
(1) Prices paid for the same or similar items sold under different terms and conditions;
(2) Prices paid for similar levels of work or effort on related products or services;
(3) Prices paid for alternative solutions or approaches; and
(4) Other relevant information that can serve as the basis for determining the reasonableness of price.
(d) Nothing in this section shall be construed to preclude the contracting officer from requiring the contractor to supply information that is sufficient to determine the reasonableness of price, regardless of whether or not the contractor was required to provide such information in connection with any earlier procurement. If the contracting officer determines that the pricing information submitted is not sufficient to determine the reasonableness of price, the contracting officer may request other relevant information regarding the basis for price or cost, including uncertified cost data such as labor costs, material costs, and other direct and indirect costs.
(f) * * *
(vi) * * *
(E) Use the provision 252.215-70XX, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data, as prescribed at 215.408(6)(i) to comply with section 831 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239) and section 853 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92).
(
(
This subpart implements section 856 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92).
(a)
(i) The earlier use of commercial acquisition procedures under FAR part 12 was in error or based on inadequate information; and
(ii) DoD will realize a cost savings compared to the cost of procuring a similar quantity or level of such item or service using commercial acquisition procedures.
(2) In the case of a procurement valued at more than $100 million, a contract may not be awarded pursuant to a conversion of the procurement described in paragraph (a)(1) of this section until—
(i) The head of the contracting activity approves the determination made under paragraph (1) of this section; and
(ii) A copy of the determination so approved is provided to the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics.
(b) In making a determination under paragraph (a) of this section, the determining official shall, at a minimum, consider the following factors:
(1) The estimated cost of research and development to be performed by the existing contractor to improve future products or services.
(2) The costs for DoD and the contractor in assessing and responding to data requests to support a conversion to noncommercial acquisition procedures.
(3) Changes in purchase quantities.
(4) Costs associated with potential procurement delays resulting from the conversion.
(c) The requirements of this subpart terminate November 25, 2020.
As used in this subpart—
The addition reads as follows:
(a)(i) Pursuant to section 831 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239)—
(A) The contracting officer is responsible for determining if the information provided by the offeror is sufficient to determine price reasonableness. This responsibility includes determining whether information on the prices at which the same or similar items have previously been sold is adequate for evaluating the reasonableness of price, and determining the extent of uncertified cost data that should be required in cases in which price information is not adequate;
(B) The contracting officer shall not limit the Government's ability to obtain any data that may be necessary to support a determination of fair and reasonable pricing by agreeing to contract terms that preclude obtaining necessary supporting information; and
(C) When obtaining uncertified cost data, the contracting officer shall require the offeror to provide the information in the form in which it is regularly maintained in the offeror's business operations.
(c) * * *
(3) * * *
(C) When applying the commercial item exception under FAR 15.403-1(b)(3), see 212.102(a)(iii) regarding prior commercial item determinations.
The additions read as follows:
(a)
(b)
(ii) If the contracting officer determines that the information obtained through market research is insufficient to determine the reasonableness of price, the contracting officer shall consider information submitted by the offeror of recent purchase prices paid by the Government or commercial customers for the same or similar commercial items under comparable terms and conditions in establishing price reasonableness on a subsequent purchase if the contracting officer is satisfied that the prices previously paid remain a valid reference for comparison. The contracting officer shall consider the totality of other relevant factors such as the time elapsed since the prior purchase and any differences in the quantities purchased (section 853 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92)).
(iii) If the contracting officer determines that the offeror cannot provide sufficient information as described in paragraph (b)(ii) of this section to determine the reasonableness of price, the contracting officer should request the offeror to submit information on—
(A) Prices paid for the same or similar items sold under different terms and conditions;
(B) Prices paid for similar levels of work or effort on related products or services;
(C) Prices paid for alternative solutions or approaches; and
(D) Other relevant information that can serve as the basis for determining the reasonableness of price.
(iv) If the contracting officer determines that the pricing information submitted is not sufficient to determine the reasonableness of price, the contracting officer may request other relevant information, to include cost data. However, no cost data may be required in any case in which there are sufficient nongovernment sales of the same item to establish reasonableness of price (section 831 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239)).
(v) When evaluating pricing data, the contracting officer shall consider materially differing terms and conditions, quantities, and market and economic factors. For similar items, the contracting officer shall also consider material differences between the similar item and the item being procured (FAR 15.404-1(b)(2)(ii)(B)). Material differences are those that could reasonably be expected to influence the contracting officer's determination of price reasonableness. The contracting officer shall consider the following factors when evaluating the relevance of the information available:
(A)
(B)
(2) A pending sale may be relevant if, in the judgement of the contracting officer, it is probable at the anticipated price, and the sale could reasonably be expected to materially influence the contracting officer's determination of price reasonableness. The contracting officer may consult with the cognizant ACOs as they may have information about future sales.
(C)
(D)
(vi) The contracting officer shall consider catalog prices to be reliable when they are regularly maintained and supported by relevant sales data (including any related discounts, refunds, rebates, offsets, or other adjustments). The contracting officer may request that the offeror support differences between the proposed price(s), catalog price(s), and relevant sales data.
(vii) The contracting officer may consult with the DoD cadre of experts who are available to provide expert advice to the acquisition workforce in assisting with commercial item and price reasonableness determinations. The DoD cadre of experts is identified at PGI 215.404-2(a)(iii).
The revisions and addition read as follows:
(3) * * *
(i)(A) * * *
(B) Do not use 252.225-7003 in lieu of DFARS 252.215-70XX in competitive acquisitions; and
(6) When reasonably certain that the submission of certified cost or pricing data or data other than certified cost or pricing data will be required—
(i) Use the basic or alternate of the provision at 252.215-70XX, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data, in lieu of the provision at FAR 52.215-20, Requirements for Certified Cost or Pricing Data and Data Other Than Certified Cost or Pricing Data, in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items.
(A) Use the basic provision when submission of certified cost or pricing data is required to be in the FAR Table 15-2 format, or if it is anticipated, at the time of solicitation, that the submission of certified cost or pricing data may not be required.
(B) Use the alternate I provision to specify a format for certified cost or
(ii) Use the provision at 252.215-70YY, Requirements for Submission of Proposals to the Administrative Contracting Officer and Contract Auditor, when using the basic or alternate of the provision at 252.215-70XX and copies of the proposal are to be sent to the ACO and contract auditor; and
(iii) Use the provision at 252.215-70ZZ, Requirements for Submission of Proposals via Electronic Media, when using the basic or alternate of the provision at 252.215-70XX and submission via electronic media is required.
The revisions read as follows:
(b) * * *
(2) The contracting officer determines in writing that the subsystem is a commercial item.
(c) * * *
(1) * * *
(ii) The contracting officer determines in writing that the component or spare part is a commercial item.
(d)
(1) To the extent necessary to make a determination of price reasonableness, the contracting officer shall require the offeror to submit prices paid for the same or similar commercial items under comparable terms and conditions by both Government and commercial customers.
(2) If the contracting officer determines that the offeror cannot provide sufficient information described in paragraph (d)(1) of this section to determine the reasonableness of price, the contracting officer shall request the offeror to submit information on—
(i) Prices paid for the same or similar items under different terms and conditions;
(ii) Prices paid for similar levels of work or effort on related products or services;
(iii) Prices paid for alternative solutions or approaches; and
(iv) Other relevant information that can serve as the basis for a price reasonableness determination.
(3) If the contracting officer determines that the information submitted pursuant to paragraphs (d)(1) and (2) of this section is not sufficient to determine the reasonableness of price, the contracting officer may request the offeror to submit other relevant information, including uncertified cost data. However, no uncertified cost data may be required in any case in which there are sufficient non-government sales of the same item to establish reasonableness of price.
(4) An offeror shall not be required to submit information described in paragraph (d)(3) of this section with regard to a commercially available off-the-shelf item. An offeror may be required to submit such information with regard to any other item that was developed exclusively at private expense only after the head of the contracting activity determines in writing that the information submitted pursuant to paragraphs (d)(1) and (2) of this section is not sufficient to determine the reasonableness of price.
(1) A contracting officer may not enter into a contract in excess of the simplified acquisition threshold for information technology products or services that are not commercial items unless the head of the contracting activity determines in writing that no commercial items are suitable to meet the agency's needs, as determined through the use of market research appropriate to the circumstances (see FAR 10.001(a)(3)) (section 855 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92)).
(2) See subpart 208.74 when acquiring commercial software or software maintenance.
(3) See 227.7202 for policy on the acquisition of commercial computer software and commercial computer software documentation.
(a)
(b)
(i)
(ii)
(A) For items previously determined to be commercial, the contract and military department, defense agency, or other DoD
(B) For items priced based on a catalog—
(
(
(
(
(C) For items priced based on market pricing, a description of the nature of the commercial market, the methodology used to establish a market price, and all relevant sales data. The description shall be adequate to permit the Department of Defense to verify the accuracy of the description;
(D) For items included on an active Federal Supply Service Multiple Award Schedule contract, proof that an exception has been granted for the schedule item; or
(E) For items provided by nontraditional defense contractors, a statement that the entity is not currently performing and has not performed, for at least the 1-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any contract or subcontract for the Department of Defense that is subject to full coverage under the cost accounting standards prescribed pursuant to 41 U.S.C. 1502 and the regulations implementing such section.
(2) The Offeror grants the Contracting Officer or an authorized representative the right to examine, at any time before award, books, records, documents, or other directly pertinent records to verify any request for an exception under this provision, and to determine the reasonableness of price.
(c)
(1) The Offeror shall prepare and submit certified cost or pricing data and supporting attachments in accordance with the instructions contained in Table 15-2 of FAR 15.408, which is incorporated by reference with the same force and effect as though it were inserted here in full text. The instructions in Table 15-2 are incorporated as a mandatory format to be used in any resulting contract, unless the Contracting Officer and the Offeror agree to a different format and change this provision to use Alternate I.
(2) As soon as practicable after agreement on price, but before contract award (except for unpriced actions such as letter contracts), the Offeror shall submit a Certificate of Current Cost or Pricing Data, as prescribed by FAR 15.406-2.
(d)
(1) Data other than certified cost or pricing data submitted in accordance with this provision shall include all data necessary to permit a determination that the proposed price is fair and reasonable, to include the requirements in DFARS 215.402(a)(i) and DFARS 215.404-1(b).
(2) In cases in which uncertified cost data is required, the information shall be provided in the form in which it is regularly maintained by the Offeror or prospective subcontractor in its business operations.
(3) The Offeror shall provide information described as follows:
(4) Within 10 days of a written request from the Contracting Officer for additional information to support proposal analysis, the Offeror shall provide either the requested information, or a written explanation for the inability to fully comply.
(5)
(i) Offerors shall obtain from subcontractors the information necessary to support a determination of price reasonableness, as described in FAR part 15 and DFARS part 215.
(ii) No cost information may be required from a prospective subcontractor in any case in which there are sufficient nongovernment sales of the same item to establish reasonableness of price.
(iii) If the Offeror relies on relevant sales data for similar items to determine the price is reasonable, the Offeror shall obtain only that technical information necessary—
(A) To support the conclusion that items are technically similar; and
(B) To explain any technical differences that account for variances between the proposed prices and the sales data presented.
(e)
(1) Paragraphs (c) and (d) of this provision for subcontracts above the threshold for submission of certified cost or pricing data in FAR 15.403-4; and
(2) Paragraph (d) of this provision for subcontracts exceeding the simplified acquisition threshold defined in FAR part 2.
(End of provision)
(a)
(b)
(1) In lieu of submitting certified cost or pricing data, the Offeror may submit a written request for exception by submitting the information described in the following paragraphs. The Contracting Officer may require additional supporting information, but only to the extent necessary to determine whether an exception should be granted, and whether the price is fair and reasonable.
(i)
(ii)
(A) For items previously determined to be commercial, the contract and military department, defense agency, or other DoD component that rendered such determination;
(B) For items priced based on a catalog—
(
(
(
(
(C) For items priced based on market pricing, a description of the nature of the commercial market, the methodology used to establish a market price, and all relevant sales data. The description shall be adequate to permit the Department of Defense to verify the accuracy of the description;
(D) For items included on an active Federal Supply Service Multiple Award Schedule contract, proof that an exception has been granted for the schedule item; or
(E) For items provided by nontraditional defense contractors, a statement that the entity is not currently performing and has not performed, for at least the 1-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any contract or subcontract for the Department of Defense that is subject to full coverage under the cost accounting standards prescribed pursuant to 41 U.S.C. 1502 and the regulations implementing such section.
(2) The Offeror grants the Contracting Officer or an authorized representative the right to examine, at any time before award, books, records, documents, or other directly pertinent records to verify any request for an exception under this provision, and to determine the reasonableness of price.
(c)
(1) The Offeror shall submit certified cost or pricing data, data other than certified cost or pricing data, and supporting attachments in the following format:
(2) As soon as practicable after agreement on price, but before contract award (except for unpriced actions such as letter contracts), the Offeror shall submit a Certificate of Current Cost or Pricing Data, as prescribed by FAR 15.406-2.
(d)
(1) Data other than certified cost or pricing data submitted in accordance with this provision shall include all data necessary to permit a determination that the proposed price is fair and reasonable, to include the requirements in DFARS 215.402(a)(i) and DFARS 215.404-1(b).
(2) In cases in which uncertified cost data is required, the information shall be provided in the form in which it is regularly maintained by the Offeror or prospective subcontractor in its business operations.
(3) The Offeror shall provide information described as follows:
(4) Within 10 days of a written request from the Contracting Officer for additional information to support proposal analysis, the Offeror shall provide either the requested information, or a written explanation for the inability to fully comply.
(5)
(ii) No cost information may be required from a prospective subcontractor in any case in which there are sufficient nongovernment sales of the same item to establish reasonableness of price.
(iii) If the Offeror relies on relevant sales data for similar items to determine the price is reasonable, the Offeror shall obtain only that technical information necessary—
(A) To support the conclusion that items are technically similar; and
(B) To explain any technical differences that account for variances between the proposed prices and the sales data presented.
(e)
(1) Paragraph (c) and (d) of this provision for subcontracts above the threshold for submission of certified cost or pricing data in FAR 15.403-4; and
(2) Paragraph (d) of this provision for subcontracts exceeding the simplified acquisition threshold defined in FAR part 2.
(End of provision)
As prescribed in 215.408(6)(ii), use the following provision:
When the proposal is submitted, the Offeror shall also submit one copy each to—
(a) The Administrative Contracting Officer; and
(b) The Contract Auditor.
(End of provision)
As prescribed in 215.408(6)(iii), use the following provision:
The Offeror shall submit the cost portion of the proposal via the following electronic media:
(End of provision)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations to implement Regulatory Amendment 16 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP) (Regulatory Amendment 16), as prepared and submitted by the South Atlantic Fishery Management Council (Council). If implemented, this proposed rule would revise the current seasonal prohibition on the use of black sea bass pot gear in the South Atlantic and add additional gear marking requirements for black sea bass pot gear. The purpose of this proposed rule is to reduce the adverse socioeconomic impacts from the current seasonal black sea bass pot gear prohibition while continuing to protect Endangered Species Act (ESA) listed whales in the South Atlantic. This proposed rule would also help better identify black sea bass pot gear in the South Atlantic.
Written comments must be received on or before September 12, 2016.
You may submit comments on the proposed rule, identified by
•
•
Electronic copies of Regulatory Amendment 16, which includes an environmental impact statement (EIS), a Regulatory Flexibility Act (RFA) analysis, and a regulatory impact review, may be obtained from the Southeast Regional Office Web site at
Comments regarding the burden-hour estimates, clarity of the instructions, or other aspects of the collection-of-information requirements contained in this proposed rule (see the Classification section of the preamble) may be submitted in writing to Adam Bailey, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701; or the Office of Management and Budget (OMB), by email at
Nikhil Mehta, telephone: 727-824-5305, email:
Black sea bass is in the snapper-grouper fishery and is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
On December 4, 2013, NMFS published a notice of intent to prepare a draft EIS for Regulatory Amendment 16 and requested public comment (78 FR 72968). On October 23, 2015, the notice of availability for the draft EIS was published and public comment was also requested (80 FR 64409). The notice of availability for the final EIS for Regulatory Amendment 16 published on July 1, 2016 (81 FR 43198).
The black sea bass stock in the South Atlantic was most recently assessed through the Southeast Data, Assessment, and Review (SEDAR) stock assessment process in 2013 (SEDAR 25 Update). The SEDAR 25 Update determined that the black sea bass stock in the South Atlantic is not undergoing overfishing and is not overfished. The SEDAR 25 Update indicated that the black sea bass commercial and recreational sector annual catch limits (ACLs) could be increased without jeopardizing the health of the population, and as a result, the black sea bass commercial and recreational ACLs were increased through the final rule to implement Regulatory Amendment 19 to the FMP (78 FR 58249, September 23, 2013).
Additionally, Regulatory Amendment 19 established an annual prohibition on the use of black sea bass pots from November 1 through April 30. During this closure, no person is allowed to harvest or possess black sea bass in or from the South Atlantic exclusive economic zone (EEZ) either with sea bass pots or from a vessel with sea bass pots on board. In addition, sea bass pots must be removed from the water in the South Atlantic EEZ prior to November 1, and may not be on board a vessel in the South Atlantic EEZ during this seasonal closure. The black sea bass pot seasonal prohibition became effective on October 23, 2013.
Through Regulatory Amendment 19, the seasonal sea bass pot prohibition was established as a precautionary measure to prevent interactions between black sea bass pot gear and ESA-listed whales during periods of large whale migrations and during the right whale calving season off the U.S. southeastern coast. The large whale migration period and the right whale calving season in the South Atlantic extends from approximately November 1 through April 30, each year. Since 2010, black sea bass harvest levels have reached the commercial quota, thereby triggering accountability measures (AMs) to close the commercial sector. In recent years, these in-season commercial closures have occurred prior to November 1, the beginning of the right whale calving season, therefore, Council and NMFS actions to prevent black sea bass pot gear from being in the water during periods of higher whale concentrations had been unnecessary to restrict interactions between black sea bass pot fishers and ESA-listed whales. However, NMFS determined that the increase in the black sea bass commercial ACL implemented through Regulatory Amendment 19 could extend the commercial black sea bass fishing season beyond November 1, and into a time period when a higher concentration of endangered whales are known to migrate through black sea bass fishing grounds.
This proposed rule would implement modifications to the current black sea bass pot seasonal closure. This proposed rule would also modify the buoy line rope marking requirements for black sea bass pots.
As established through Regulatory Amendment 19, black sea pot gear is prohibited in the South Atlantic EEZ annually from November 1 through April 30. This proposed rule would retain the November 1 through April 30 prohibition on the use of black sea bass pots, but would modify the boundaries of the prohibition. This rule would revise the South Atlantic EEZ-wide seasonal closure to a closure of two temporal and spatial components. The first closure period would be for the months of November and April, and the second closure period would be for the months of December through March each year. The first closure period is illustrated by the Figure 1 below. During November and April, the eastern boundary of the sea bass pot closed area off North and South Carolina is closer to shore than during the months of December through March.
During the second closure period from December through March each year, the sea bass pot closure area would be larger off the entire South Atlantic coast than it would be during November and April, particularly off Georgia and Florida. Waters off the coast of Georgia and Florida represent the primary right whale calving grounds in the South Atlantic EEZ. This bathymetric area is based on right whale sightings (all demographic segments) and sightings per unit of effort (proxy of density) by depth and captures 97 percent and 96 percent of right whale sightings off the North Carolina/South Carolina area, and Florida/Georgia area, respectively. The proposed sea bass pot prohibited area for December through March is illustrated in Figure 2 below.
The Council has determined that reducing the size of the current black sea bass pot prohibition would continue to provide the necessary protection to ESA-listed whales in the South Atlantic. The Council based this conclusion on an analysis that simulated the potential black sea bass landings of black sea bass pot endorsement holders during a winter season and created overlays of the co-occurrence of the seasonal distribution of black sea bass pot gear and North Atlantic right whales as a proxy for the relative risk of right whale entanglements under each of the proposed alternatives in Regulatory Amendment 16. The findings of this analysis were recently published in the peer-reviewed journal, “Marine and Coastal Fisheries” by Farmer
As described in Regulatory Amendment 16, the alternatives for all of the proposed black sea bass pot closures were developed considering
Additionally, the proposed closure areas listed in this rule are expected to minimize adverse socioeconomic effects of the current November through April black sea bass pot prohibition by increasing the area available to fish using black sea bass pots.
This proposed rule would also allow for vessel transit through the proposed black sea bass pot closed areas providing the black sea bass pot gear is appropriately stowed on the vessel. Transit would be defined as non-stop progression through the closed area; fishing gear appropriately stowed means all black sea bass pot gear must be out of the water and on board the deck of the vessel. All buoys must either be disconnected from the gear or stowed within the sea bass pot. The disconnected buoys may remain on deck.
Fish traps and pot buoy lines, including black sea bass pots, are currently required to have specific line marking requirements during certain times of the year and in the locations described in the Atlantic Large Whale Take Reduction Plan (ALWTRP)(see 50 CFR 229.32(b)). The ALWTRP includes at least three trap/pot areas where black sea bass pots may be fished. This includes the Offshore Trap/Pot Waters Area, Southern Nearshore Trap/Pot Waters Area, and the U.S. Southeast Restricted Area North.
Regulatory Amendment 16 would modify the current gear marking requirements under the FMP by requiring additional markings for black sea bass pot buoy lines. This proposed rule would require that an additional 12-inch (30.5 cm) wide purple band be added onto the buoy line at the end of, and directly adjacent to, each of the currently required 12-inch (30.5 cm) colored marks required through the ALWTRP described in 50 CFR 229.32(b). Within the Council's jurisdiction for managing black sea bass, the proposed additional black sea bass gear marking requirements would be required to be in place in Federal waters from September 1 through May 31 in the Offshore Trap/Pot Waters Area and the Southern Nearshore Trap/Pot Waters Area, and from November 15 through May 31 in the Southeast U.S. Restricted Areas North. The Council's requirement that sea bass pot gear have additional gear-specific marking would help distinguish black sea bass pots from other types of trap and pot gear in the South Atlantic EEZ.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Regulatory Amendment 16, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared an initial regulatory flexibility analysis (IRFA), as required by section 603 of the RFA, for this proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, the objectives of, and legal basis for this action are contained at the beginning of this section in the preamble and in the
The Magnuson-Stevens Act provides the statutory basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting or record-keeping requirements are introduced by this proposed rule. However, the proposed rule would require that for each sea bass pot buoy line an additional 12-inch (30.5 cm) wide purple band be added at the end of, and directly adjacent to, each of the currently required 12-inch (30.5 cm) colored marks required under the ALWTRP discussed above. Similar to the current requirements under the ALWTRP, this marking requirement does not need an additional expertise on the part of fishermen. NMFS estimates that this requirement would cost each pot endorsement holder about an additional $5 annually if surveyor's tape is used for line marking, or about an additional $90 annually if paint is used instead. The estimated additional annual time burden associated with the proposed marking requirement is up to approximately 3.5 hours annually.
NMFS expects this proposed rule to directly affect federally permitted commercial fishermen fishing for black sea bass in the South Atlantic. For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration's (SBA) current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA after July 1, 2016.
Pursuant to the RFA, and prior to July 1, 2016, an IRFA was developed for this regulatory action using SBA's size standards. NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standard. All of the entities directly affected by this regulatory action are commercial fishing businesses and were considered small under the SBA's size standards, and they all would continue to be considered small under the new NMFS standard. Thus, NMFS has determined that the new size standard does not affect analyses prepared for this regulatory action.
As of December 31, 2014, there were 32 holders of the Federal black sea bass
From the 2000/2001 through 2013/2014 fishing years, these endorsement holders used an average of 31 vessels fishing for black sea bass using pots. These vessels generated total combined revenues (2014 dollars) of $732,717 from black sea bass, $228,468 from other species jointly landed with black sea bass, and $248,662 from all other species in trips where black sea bass was not caught. The average annual revenue per vessel from all species, including black sea bass, landed by these vessels was $38,715 (2014 dollars). During the same time period, an average of 215 vessels using gear other than sea bass pots landed at least 1 lb (0.45 kg) of black sea bass. These vessels generated dockside total combined revenues (2014 dollars) of $199,574 from black sea bass, $3.838 million from other species jointly landed with black sea bass, and $7.680 million from all other species in trips where black sea bass was not caught. The average annual revenue per vessel from all species, including black sea bass, landed by these vessels was $54,651 (2014 dollars). Vessels that caught and landed black sea bass may also operate in other fisheries, the revenues of which are not known and are not reflected in these totals. Based on revenue information, all commercial vessels directly affected by the proposed rule may be assumed to be small entities.
Because all entities expected to be directly affected by this proposed rule are assumed to be small entities, NMFS has determined that this proposed rule would affect a substantial number of small entities. However, the issue of disproportionate effects on small versus large entities does not arise in the present case.
The proposed rule would modify the November 1 through April 30 prohibition on the use of black sea bass pot gear in the South Atlantic by allowing black sea bass pot fishing at depths greater than approximately 25 m from November 1 through April 30 from approximately Cape Canaveral, Florida, to the Georgia/South Carolina border; at depths greater than approximately 25 m from November 1 through 30 and from April 1 through 30 off North and South Carolina; and, at depths greater than approximately 30 m from December 1 through March 31 off North and South Carolina. In addition, the proposed rule would require black sea bass pot endorsement holders to put three 12-inch (30.5 cm) purple markings on each sea bass pot buoy line adjacent to the already required colors on these lines under the ALWTRP. The marks are commonly made with either paint or surveyor's tape. As described in the codified text, other materials may also be used for marking the line.
The proposed modification to the current prohibition on the use of black sea bass pot gear would have contrasting economic effects on the two major groups of participants in the commercial harvest of black sea bass. The proposed action would benefit those using pots for harvesting black sea bass, and given that the commercial ACL is predicted to be fully taken, benefits to users of other gear would decrease. The combined dockside revenues (2014 dollars) for all pot gear vessels are estimated to increase annually between $113,964 and $185,068 based on 2000-2013 average black sea bass price, or between $163,606 and $260,355 based on 2011-2013 average black sea bass price. Two price levels are used to provide some bounds on the range of revenue effects. The lower bound is based on the 2000-2013 average black sea bass price and the upper bound is based on the 2011-2013 average black sea bass price. In contrast, the combined dockside revenues (2014 dollars) for all non-pot gear vessels are estimated to decrease annually between $68,323 and $141,527 based on 2000-2013 average black sea bass price, or between $116,650 and $241,631 based on 2011-2013 the average black sea bass price. The net revenue change for all vessels combined would be between $43,541 and $46,367 based on 2000-2013 average price for black sea bass, or between $43,889 and $46,553 based on 2010-2013 average price for black sea bass. Assuming that revenue increases for users of pot gear would be equally distributed among the 32 endorsement holders, revenues per pot endorsement holder would increase annually between $3,561 and $5,783, or between $5,113 and $8,136. However, revenue per vessel for the 215 users of non-pot gear would decrease between $318 and $658, or between $543 and $1,124. For vessels using pot gear, the expected revenue increases would be approximately 9 to 21 percent of their average annual revenue of $38,715 per vessel. However, revenue losses to vessels using gear other than sea bass pots would be between 1 and 2 percent of their average annual revenue of $54,651 per vessel. Therefore, on a per vessel basis, the revenue gains to the pot endorsement holders could potentially be substantial, whereas the revenue losses to the other gear users would be relatively small.
The proposed requirement on black sea bass pot endorsement holders to put three 12-inch (30.5 cm) purple markings on each pot buoy line adjacent to the already required colors under the ALWTRP would cost each endorsement holder about an additional $5 annually if surveyor's tape is used, or about an additional $90 annually if paint is used instead. This cost is relatively small.
The following discussion describes the alternatives that were not selected as preferred by the Council. In this section, the term “overall revenues” refers to the sum of revenues from vessels using black sea bass pots and revenues from vessels using gear other than black sea bass pots.
Twelve alternatives, including the preferred alternative as described above, were considered for modifying the November 1 through April 30 prohibition on the use of black sea bass pot gear. The first alternative, the no action alternative, would maintain the current economic benefits to all participants in the fishery as well as provide the least likelihood of right whales getting entangled with black sea bass pot lines. However, this alternative would not address the need to reduce the adverse socioeconomic effects of the current prohibition on the use of black sea bass pot gear.
The second alternative would apply the black sea bass pot closure to the area currently designated as North Atlantic right whale critical habitat from November 15 through April 15. This alternative would provide slightly more increases in overall revenues to commercial vessels than the preferred alternative, but it would also pose the highest threat of right whale entanglement with pot buoy lines.
The third alternative would apply the black sea bass pot closure from approximately Ponce Inlet, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Relative to the preferred alternative, this alternative would result in higher overall revenue increases but lower protection to right whales from getting entangled with pot buoy lines.
The fourth alternative would apply the black sea bass pot closure from approximately Cape Canaveral, Florida, to Cape Hatteras, North Carolina,
The fifth alternative would apply the black sea bass pot closure from approximately Daytona Beach, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Relative to the preferred alternative, this alternative would provide slightly more increases in overall revenues to commercial vessels but would provide less protection to right whales from entanglement with pot buoy lines.
The sixth alternative would apply the black sea bass pot closure from approximately Sebastian Inlet, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Although this alternative would provide the second greatest protection in comparison with the alternatives in Regulatory Amendment 16 to right whales from entanglement with pot buoy lines, it would result in lower overall revenue increases than the preferred alternative.
The seventh alternative would apply the black sea bass pot closure from approximately the Altamaha River, Georgia, to Cape Hatteras, North Carolina, annually from November 1 through December 15 and March 15 through April 30; or annually from November 1 through December 15 and March 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida; or annually from February 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida. Relative to the preferred alternative, this alternative and its sub-alternatives would result in relatively higher overall revenue increases but would provide much reduced protection to right whales from entanglement with sea bass pot buoy lines.
The eighth alternative would apply the black sea bass pot closure from approximately Daytona Beach, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 15; or annually from November 1 through December 15 and February 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida. Relative to the preferred alternative, this alternative and its sub-alternatives would result in higher overall revenue increases but would afford a much reduced protection to right whales from entanglement with pot buoy lines.
The ninth alternative would apply the black sea bass pot closure from approximately Daytona Beach, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 15; or annually from November 1 through December 15 and February 15 through April 30 for the area off North Carolina and South Carolina, and from November 15 through April 15 for the area off Georgia and Florida. Relative to the preferred alternative, this alternative and its sub-alternatives would result in higher overall revenue increases but would provide much reduced protection to right whales from entanglement with pot buoy lines.
The tenth alternative would apply the black sea bass pot closure from approximately the Georgia/South Carolina border, to Cape Hatteras, North Carolina, annually from November 1 through December 15, with the following provision: From February 15 through April 30, the black sea bass pot closure applies to waters inshore of points 1-28 listed in Table 2.1.9 of Regulatory Amendment 16, approximately the Georgia/South Carolina border, to Cape Hatteras, North Carolina; from December 16 through February 14, there would be no closure off of the Carolinas; from November 15 through April 15, the black sea bass pot closure applies to waters inshore of points 20-28 listed in Table 2.1.8 of Regulatory Amendment 16, approximately the Georgia/South Carolina border, to approximately Daytona Beach, Florida. Relative to the preferred alternative, this alternative would result in higher overall revenue increases but would provide much reduced protection to right whales from entanglement with pot buoy lines.
The eleventh alternative would apply the black sea bass pot closure from approximately Cape Canaveral, Florida, to Cape Hatteras, North Carolina, annually from November 1 through April 30. Relative to the preferred alternative, this alternative would result in higher overall revenue increases but would provide slightly reduced protection to right whales from entanglement with pot buoy lines.
Four alternatives, including the preferred alternative, were considered in addition to the existing ALWTRP buoy line/weak link gear requirements and buoy line rope marking for black sea bass pots in the South Atlantic. The first alternative, the no action alternative, would not impose any additional cost on fishermen when fishing for black sea bass using pots but it would not meet the need for the action. The second alternative, with two sub-alternatives, would impose requirements in addition to those required under the current ALWTRP for buoy lines from November 1 through April 30 in Federal waters in the South Atlantic. The first sub-alternative would require that the breaking strength for buoy lines not exceed 2,200 lb (997 kg) and the second sub-alternative would require that the breaking strength for buoy lines not exceed 1,200 lb (544 kg). The first sub-alternative is currently required under the ALWTRP in Federal waters off South Carolina, Georgia, and Florida, and would affect only about 17 pot endorsement holders in North Carolina. The estimated cost to each of these 17 fishermen is a maximum of $716. The second sub-alternative would impose the same cost per fisherman of $716 but would affect all 32 pot endorsement holders. The third alternative would require that the breaking strength of the weak links of the buoy lines must not exceed 400 lb (181 kg) for black sea bass pots in the South Atlantic EEZ. This alternative is a decrease from the current requirement of 600 lb (272 kg) breaking strength of the weak links under the ALWTRP, and is estimated to cost each of the 32 pot endorsement holders $65. Relative to the preferred alternative, all these alternatives, except the no action alternative, would impose higher costs upon fishermen using black sea bass pots.
This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA). NMFS is proposing to revise the collection-of-information requirement under OMB Control Number 0648-0358. NMFS estimates the proposed requirement for sea bass pot gear marking would result in an additional annual cost of up to $90 per sea bass pot endorsement holder and require up to an additional 3.5 hours per response per year. Based upon feedback from fishermen, the cost and time burden for the proposed marking requirement may be slightly lower in subsequent years depending on the marking method used. However, NMFS estimates the requirement to endorsement holders would result in the same for cost and time burden for each subsequent year, because different materials used to mark sea bass pot gear are available and the longevity of the markings vary depending on factors such as the length of the fishing season and how often the gear is used. This estimate of the public reporting burden includes the time for
NMFS seeks public comment regarding:
• Whether this proposed collection-of-information is necessary for the proper performance of the functions of the agency, including whether the gear marking will have practical utility;
• The accuracy of the burden estimate;
• The instructions for how to mark the sea bass pot gear; and
• Ways to minimize the burden of the collection-of-information, including through the use of automated collection techniques or other forms of information technology.
Send comments regarding the burden estimate or any other aspect of the collection-of-information requirement, including suggestions for reducing the burden, to NMFS or to OMB (see
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB control number. All currently approved collections of information may be viewed at:
Annual catch limits, Black Sea Bass, Fisheries, Fishing, South Atlantic.
For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:
16 U.S.C. 1801
(b) * * *
(6)
(i) From November 1 through November 30 and from April 1 through April 30, no person may harvest or possess black sea bass in or from the closed area within the South Atlantic EEZ either with sea bass pots or from a vessel with sea bass pots on board in the South Atlantic EEZ inshore of the rhumb lines connecting, in order, the following points:
(ii) From December 1 through March 31, no person may harvest or possess black sea bass in or from the closed area within the South Atlantic EEZ either with sea bass pots or from a vessel with sea bass pots on board in the South Atlantic EEZ inshore of the rhumb lines connecting, in order, the following points:
(iii) For the purpose of paragraph (b)(6) of this section, transit means non-stop progression through the area; fishing gear appropriately stowed means all black sea bass pot gear must be out of the water and on board the deck of the vessel. All buoys must either be disconnected from the gear or stowed within the sea bass pot. Disconnected buoys may remain on deck.
(g)
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden 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 those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by September 12, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Commission on Civil Rights.
Announcement of monthly planning meetings.
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 planning meetings of the Virginia Advisory Committee to the Commission will convene by conference call at 12:00 p.m. (ET) on each of the following Thursdays: September 8, October 6, November 3 and December 1, 2016. The purpose of each planning meeting is to discuss project planning and eventually select topic(s) for the Committee's civil rights review.
The meetings will be held at 12:00 p.m. EST on Thursday, September 8, 2016; Thursday, October 6, 2016; Thursday, November 3, 2016; and Thursday, December 1, 2016.
Public Call Information: Dial 1-888-539-3613; Conference ID 5914757.
Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1-888-539-3613 and conference call ID: 5914757. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future
Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-977-8339 and providing the operator with the toll-free conference call-in number: 1-888-539-3613 and conference call ID: 5914757.
Members of the public are invited to make statements during the open comment period of the meeting or submit written comments. The comments must be received in the regional office approximately 30 days after each scheduled meeting. 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
Records and documents discussed during the meeting will be available for public viewing as they become available at
Ivy L. Davis, at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On June 1, 2016, the Department of Commerce (the Department) initiated a sunset review of the antidumping duty order on granular polytetrafluorethylene (PTFE) resin from Italy. Because the domestic interested parties did not participate in this sunset review, the Department is revoking this antidumping duty order.
Effective [July 18, 2016].
Toby Vandall, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1664.
On August 30, 1988, the Department issued the antidumping duty order on granular PTFE resin from Italy.
The product covered by the order is PTFE resin, filled or unfilled. The order also covers PTFE wet raw polymer exported from Italy to the United States.
Pursuant to section 751(c)(3)(A) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.218(d)(1)(iii)(B)(3), if no domestic interested party files a notice of intent to participate, the Department shall, within 90 days after the initiation of the review, issue a final determination revoking the order. Because no domestic interested party filed a notice of intent to participate, the Department finds that no domestic interested party is participating in this sunset review. Therefore, we are revoking the antidumping duty order on PTFE from Italy.
Pursuant to 19 CFR 351.222(i)(2)(i), the effective date of revocation is July 18, 2016, the fifth anniversary of the effective date of publication in the
The final results of this five-year (sunset) review and notice is published in accordance with sections 751(c) and 777(i)(l) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the Department of Commerce (“the Department”) and the International Trade Commission (“ITC”) that revocation of the antidumping duty (“AD”) order on Porcelain-on-Steel Cooking Ware (“POS Cooking Ware”) from the People's Republic of China (“PRC”) would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, the Department is publishing a notice of continuation of the antidumping duty order.
Effective August 11, 2016.
Andrew Devine, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0238.
On February 2, 2016, the Department published the notice of the initiation of the fourth five-year (“sunset”) review of the Antidumping Order (“AD Order”) on POS Cooking Ware from the PRC, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”).
The Department, therefore, notified the ITC of the magnitude of the margins likely to prevail should the AD Order be revoked.
On July 28, 2016, the ITC published notice of its determination, pursuant to section 751(c) of the Act, that revocation of the AD Order on POS Cooking Ware from the PRC would likely lead to a continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.
The merchandise covered by the AD Order is porcelain-on-steel cooking ware, including tea kettles, which do not have self-contained electric heating elements. All of the foregoing are constructed of steel and are enameled or glazed with vitreous glasses. The merchandise is currently classifiable under the Harmonized Tariff Schedule of the United States, (“HTSUS”) subheading 7323.94.00.
As a result of the determinations by the Department and the ITC that revocation of the AD Order would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act and 19 CFR 351.218(a), the Department hereby orders the continuation of the AD Order on POS Cooking Ware from the PRC. U.S. Customs and Border Protection will continue to collect AD cash deposits at the rates in effect at the time of entry for all imports of subject merchandise.
The effective date of the continuation of the Order will be the date of publication in the
This five-year sunset review and this notice are in accordance with section 751(c) of the Act and published pursuant to section 777(i)(1) of the Act and 19 CFR 351.218(f)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Lilit Astvatsatrian or William Horn, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6412 or (202) 482-2615, respectively.
On July 19, 2016, the Department of Commerce (“the Department”) published the final results of the 2013-2014 administrative review of the antidumping duty order on multilayered wood flooring from the People's Republic of China (“PRC”).
This correction to the final results of administrative review is issued and published in accordance with sections 751(h) and 777(i)(2)(i) of the Tariff Act of 1930, as amended.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with June anniversary dates. In accordance with the Department's regulations, we are initiating those administrative reviews.
Effective August 11, 2016.
Brenda E. Waters, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482-4735.
The Department has received timely requests, in accordance with 19 CFR 351.213(b), for administrative reviews of various antidumping and countervailing duty orders and findings with June anniversary dates.
All deadlines for the submission of various types of information, certifications, or comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting time.
If a producer or exporter named in this notice of initiation had no exports, sales, or entries during the period of review (“POR”), it must notify the Department within 30 days of publication of this notice in the
In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the period of review. We intend to place the CBP data on the record within five days of publication of the initiation notice and to make our decision regarding respondent selection within 30 days of publication of the initiation
In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, the Department has found that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that the Department does not intend to
In proceedings involving non-market economy (“NME”) countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from the
All firms listed below that wish to qualify for separate rate status in the administrative reviews involving NME countries must complete, as appropriate, either a separate rate application or certification, as described below. For these administrative reviews, in order to demonstrate separate rate eligibility, the Department requires entities for whom a review was requested, that were assigned a separate rate in the most recent segment of this proceeding in which they participated, to certify that they continue to meet the criteria for obtaining a separate rate. The Separate Rate Certification form will be available on the Department's Web site at
Entities that currently do not have a separate rate from a completed segment of the proceeding
For exporters and producers who submit a separate-rate status application or certification and subsequently are selected as mandatory respondents, these exporters and producers will no longer be eligible for separate rate status unless they respond to all parts of the questionnaire as mandatory respondents.
In accordance with 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than June 30, 2017.
None.
During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under 19 CFR 351.211 or a determination under 19 CFR 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine, consistent with
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the POR.
Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
On April 10, 2013, the Department published
Any party submitting factual information in an antidumping duty or countervailing duty proceeding must certify to the accuracy and completeness of that information.
On September 20, 2013, the Department modified its regulation
These initiations and this notice are in accordance with section 751(a) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.221(c)(1)(i).
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 Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801
In the last decade or more, the Council has developed several cooperative programs as options in larger catch share programs. As part of those cooperative programs, the Council required that cooperatives submit an annual written report detailing various activities of the cooperative. These reports are intended to be a resource for the Council to track the effectiveness of the cooperative and their ability to meet the Council's goals. Additionally, they are a tool for the cooperatives to provide feedback on the programs. Regulation provides a framework for the minimum required information for most of the reports, while the Council has the flexibility to augment this framework with additional information requests that may be pertinent to current issues in the fishery.
This request combines voluntary, non-regulatory cooperative report elements from four collections (OMB Control Nos. 0648-0401, -0565, -0678, and -0697) with the Annual Rockfish Cooperative Report from OMB Control Number 0648-0545 which contains both required (per 50 CFR 679.5(r)) and voluntary data elements. The title of this collection is changed from “Crab Rationalization (CR) Program: CR Cooperative Annual Report” to read: “Alaska Council Cooperative Annual Reports.” In addition to presentation of the report before the Council, all of the annual reports must be submitted to the Council by email or fax for the April Council meeting.
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
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of open meeting.
The National Telecommunications and Information Administration (NTIA) will convene a workshop on behalf of the U.S. Department of Commerce's Internet Policy Task Force and the Digital Economy Leadership Team on Fostering the Advancement of the Internet of Things.
The workshop will be held on September 1, 2016, from 9:00 a.m. to 3:00 p.m., Eastern Daylight Time.
The workshop will be held at the U.S. Patent and Trademark Office, 600 Dulany Street, Alexandria, Virginia 22314. The location of the meeting is subject to change. Please refer to NTIA's Web site,
Travis Hall, National Telecommunications and Information Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Room 4725, Washington, DC 20230; telephone (202) 482-3522; email
Recognizing the vital importance of the Internet to U.S. innovation, prosperity, education, and civic and cultural life, the Department of Commerce has made it a top priority to encourage growth of the digital economy and ensure that the Internet remains an open platform for innovation and free expression. As part of the Department's Digital Economy Agenda, the National Telecommunications and Information Administration (NTIA) initiated an inquiry regarding the Internet of Things (IoT) to review the current technological and policy landscape, which included a Request for Comment on “The Benefits, Challenges, and Potential Roles for the Government in Fostering the Advancement of the Internet of Things.”
NTIA will post a detailed agenda on its Web site,
The meeting is open to the public and the press. The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Travis Hall at (202) 482-3522 or
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (PRA), this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before September 12, 2016.
Comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, may be submitted directly
Comments may also be mailed to: Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581; or sent by hand delivery/courier to the same address.
A copy of the supporting statements for the collection of information discussed above may be obtained by visiting
Nisha Smalls, Office of Customer Education and Outreach, Commodity Futures Trading Commission, 1155 21st Street NW., Washington, DC 20581, (202) 418-5895; FAX: (202) 418-5541; email:
The Commission's Office of Customer Education and Outreach (OCEO) develops campaigns to change customer behaviors, so that customers can better avoid fraud as defined under the Commodity Exchange Act. The OCEO intends to survey the public by
The OCEO will use the information collected in the survey to refine the methods used to inform the public about how to best detect and report financial fraud. This will be done by creating a final summary report that includes key findings from the survey.
Findings from the summary report will be used to directionally inform the outreach efforts that the CFTC undertakes concerning helping customers avoid financial fraud.
The survey will be administered using an online survey tool. The online modality approach will allow presentation of test material to participants in a more convenient and time-efficient manner than other collection methods such as mall intercepts. The online method also allows for a quicker turnaround for data collection. No other collection methods will be used.
The proposed survey questions appear below:
1. When it comes to family and personal investments like stocks, mutual funds, or other trading products, how likely are you to be involved in making decisions for your household?
2. Below is a list of financial products. Please select all that you currently are invested in or have invested in.
Please answer yes or no to each of the following questions.
Below are a number of actions that you may or may not be likely to complete. Please indicate how likely or unlikely you are to complete the actions using the scale below. If you were considering investing with someone you had not invested with before, how likely are you to:
17. Generally speaking, how concerned are you about unknowingly being part of a fraudulent investment?
18. If you
19. If you became aware that an investment you were
20. Which, if any, of the following do you think are potential signs of investment fraud? If the person selling the investment . . .
Below are a number of statements with which you may or may not agree. Please indicate how much you agree or disagree with each statement.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by September 12, 2016.
Fred Licari, 571-372-0493.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by September 12, 2016.
Fred Licari, 571-372-0493.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Department of the Army, DoD.
Notice of open committee meeting.
The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the Army Education Advisory Committee. This meeting is open to the public.
The Army Education Advisory Committee will meet from 9:00 a.m. to 5:00 p.m. on September 7 & 8, 2016.
Army Education Advisory Committee, 950 Jefferson Avenue, Building 950, U.S. Training and Doctrine Command (TRADOC) Headquarters, Conference Room 3075, Ft. Eustis, VA 23604.
Mr. Wayne Joyner, the Designated Federal Officer for the committee, in writing at ATTN: ATTG-ZC, TRADOC, 950 Jefferson Ave., Fort Eustis, VA 23604, by email at
The committee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
Because the meeting of the committee will be held in a Federal Government facility on a military base, security screening is required. A photo ID is required to enter base. Please note that security and gate guards have the right to inspect vehicles and persons seeking to enter and exit the installation. TRADOC Headquarters is fully handicap accessible. Wheelchair access is available in front at the main entrance of the building. For additional information about public access procedures, contact Mr. Joyner, the committee's Designated Federal Officer, at the email address or telephone number listed in the
Pursuant to 41 CFR 102-3.140d, the Committee is not obligated to allow a member of the public to speak or otherwise address the Committee during the meeting. Members of the public will be permitted to make verbal comments during the Committee meeting only at the time and in the manner described below. If a member of the public is interested in making a verbal comment at the open meeting, that individual must submit a request, with a brief statement of the subject matter to be addressed by the comment, at least seven business days in advance to the committee's Designated Federal Official, via electronic mail, the preferred mode of submission, at the address listed in the
Department of Defense.
Renewal of Federal Advisory Committee.
The Department of Defense (DoD) is publishing this notice to announce that it is renewing the charter for the Board of Visitors, National Defense University (“the Board).
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.
The Board's charter is being renewed in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(d). The Board's charter and contact information for the Board's Designated Federal Officer (DFO) can be found at
The Board focuses on the overall management and governance of the National Defense University (NDU) in achieving its mission to support the joint warfighter. The Board provides the Secretary of Defense and the Deputy Secretary of Defense, through the Chairman of the Joint Chiefs of Staff and the President of the National Defense University, independent advice and recommendations on accreditation compliance, organizational management, strategic planning, resource management, and other matters of interest to the NDU in its mission to support the joint warfighter through rigorous Joint Professional Military Education. The Board is composed of no more than 12 members who are eminent authorities in the fields of defense, management, leadership, academia, national military strategy or joint planning at all levels of war, joint doctrine, joint command and control, or joint requirements and development. All members are appointed to provide advice on behalf of the Government on the basis of their best judgment without representing any particular point of view and in a manner free from conflict of interest. Except for reimbursement of official Board-related travel and per diem, Board members serve without compensation.
The DoD may establish subcommittees, task forces, or working groups to support the Board. All subcommittees operate under the provisions of FACA and the Government in the Sunshine Act, will not work independently of the Board, report all findings to the Board for full deliberation and discussion, and have no authority to make decisions and recommendations, verbally or in writing, on behalf of the Board. No subcommittee or any of its members can update or report, verbally or in writing, directly to the DoD or any Federal officers or employees.
The Board's DFO, pursuant to DoD policy, must be a full-time or permanent part-time DoD employee, and must be in attendance for the duration of each and every Board or subcommittee meeting. The public or interested organizations may submit written statements to the Board membership about the Board's mission and functions. Such statements may be submitted at any time or in response to the stated agenda of planned Board meetings. All written statements must be submitted to the Board's DFO
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before October 11, 2016.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
On August 1, 2016, the Commission issued an order in Docket No. EL16-100-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into the justness and reasonableness of West Deptford Energy, LLC's reactive power rates.
The refund effective date in Docket No. EL16-100-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
The Federal Energy Regulatory Commission (Commission) hereby gives notice that members of the Commission's staff may attend the following meetings related to the wholesale markets of ISO New England Inc. (ISO-NE):
The above-referenced meetings will be held at: Colonnade Hotel, 120 Huntington Ave., Boston, MA 02116.
Further information may be found at
The discussion at the meeting described above may address matters at issue in the following proceedings:
For more information, contact Michael Cackoski, Office of Energy Market Regulation, Federal Energy Regulatory Commission at (202) 502-6169 or
Take notice that on July 29, 2016, Natural Gas Pipeline Company of America, LLC (Natural), 3250 Lacey Road, Suite 700, Downers Grove, Illinois 60515, filed in Docket No. CP16-485-000 a prior notice request pursuant to sections 157.205 and 157.216 of the Commission's regulations under the Natural Gas Act (NGA), requesting authorization to plug and abandon the Karcher 9 injection/withdrawal well and abandon and remove related meter and surface facilities as well as a related lateral and tap at Natural's Herscher Galesville Storage Field located in Kankakee County, Illinois. Natural states that, as a result of the proposed abandonment project, there will be no impact on the Herscher Galesville Storage Field's certificate parameters and that there will be no decrease in service to customers. Natural estimates the cost of the project to be $268,000, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at
Any questions concerning this application may be directed to Bruce H. Newsome, Vice President, Regulatory Products and Services, Natural Gas Pipeline Company of America, LLC, 3250 Lacey Road, Suite 700, Downers Drove, Illinois 60515-7918, by telephone at (630) 725-3070, or by email at
Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFiling” link at
On July 26, 2016, Shell Energy North America (US), L.P., filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act, proposing to study the feasibility of the Hydro Battery Pearl Hill Project (Pearl Hill Project or project) to be located on the Columbia River and Rufus Woods Lake, near Bridgeport, Douglas County, Washington. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit
The proposed pumped storage project would consist of the following: (1) 215-foot-diameter, 40-foot-high corrugated steel tank (upper reservoir) having a total storage capacity of 29 acre-feet and a usable capacity of 26.7 acre-feet; (2) 6,025-foot-long, 36-inch-diameter steel and high density polyethylene penstock extending between the upper reservoir and the pump/turbines below; (3) 400-foot-long, 100-foot-wide, 40-foot-deep polyurea membrane stretched over a framed plastic structure (lower reservoir) having a total storage capacity of 29 acre-feet and a usable capacity of 26.7 acre-feet; (4) 80-foot-long, 50-foot-wide pontoon barge floating on Rufus Woods Lake containing: Two Pelton turbine-motor/generator units rated for 2.5 megawatts each at 1,310 feet of net head; up to 8 pumps; and a substation; (5) an overhead 2,500-foot-long, 24.9-kilovolt transmission line extending from the project substation to an existing distribution line owned by Douglas County Public Utility District (the point of interconnection); and (6) appurtenant facilities. The estimated annual generation of the Pearl Hill Project would be 10.9 gigawatt-hours.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
Take notice that on July 29, 2016, pursuant to sections 206 and 306 of the Federal Power Act, 16 U.S.C. 824e and 825e and Rule 206 of the Federal Energy Regulatory Commission`s (Commission) Rules of Practice and Procedure 18 CFR 385.206, HORUS Central Valley Solar 1, LLC and HORUS Central Valley Solar 2, LLC (collectively, HORUS), filed a formal complaint against California Independent System Operator Corporation (Respondent or CAISO) alleging violation of the CAISO Open Access Transmission Tariff and requesting that the Commission (1) direct the CAISO to stop interfering with HORUS' compliance with the interconnection procedures of Western Area Power Administration (Western) for its direct interconnection with Western as an energy-only resource, and (2) stop CAISO from requiring HORUS to go through a second set of interconnection procedures and studies under the CAISO tariff even though HORUS is an energy-only resource and Western is a non-participating transmission owner under the CAISO tariff for the HORUS project, as more fully explained in the complaint.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention, or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The staff of the Federal Energy Regulatory Commission is providing this notice of a change in the location of public comment meetings for the PennEast Pipeline Project. Since issuance of the
All other public comment meetings will be held as listed in the Notice of Availability issued on July 22, 2016.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the 2017 Expansion Project involving construction and operation of facilities by Eastern Shore Natural Gas Company (Eastern Shore) in Lancaster and Chester Counties, Pennsylvania; Cecil County, Maryland; and New Castle, Kent, and Sussex Counties, Delaware. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC, on or before August 31, 2016.
If you sent comments on this project to the Commission before the opening of this docket on May 17, 2016, you will need to file those comments in Docket No. PF16-7-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this planned project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the planned facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” is available for viewing on the FERC Web site (
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (PF16-7-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
Eastern Shore plans to construct new pipeline and appurtenant aboveground facilities in the states of Pennsylvania, Maryland, and Delaware. The 2017 Expansion Project facilities consist of (1) approximately 30 miles of pipeline looping in Pennsylvania, Maryland and Delaware; (2) upgrades to existing metering facilities; (3) installation of an additional 3,550 horsepower (“hp”) compressor unit at the existing Daleville Compressor Station; and (4) approximately 17 miles of new mainline extension and the addition of two pressure control stations in Sussex County, Delaware.
The 2017 Expansion Project consists of the following components, listed below by geographic area:
Please see appendix A for a map depicting the general locations of the planned 2017 Expansion Project facilities.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the planned project under these general headings:
• Geology and soils;
• land use;
• water resources, fisheries, and wetlands;
• cultural resources;
• vegetation and wildlife;
• air quality and noise;
• endangered and threatened species;
• public safety; and
• cumulative impacts.
We will also evaluate possible alternatives to the planned project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Although no formal application has been filed, we have already initiated our NEPA review under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of interested stakeholders and to identify and resolve issues before the FERC receives an application. As part of our pre-filing review, we have begun to contact some federal and state agencies to discuss their involvement in the scoping process and the preparation of the EA.
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before we make our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section, beginning on page 2.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues related to this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Office(s), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest
If we publish and distribute the EA, copies of the EA will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix B).
Once Eastern Shore files its application with the Commission, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
The Federal Energy Regulatory Commission (Commission) hereby gives notice that members of the Commission's staff may attend the following meetings related to the transmission planning activities of the New York Independent System Operator, Inc.
The above-referenced meeting will be via web conference and teleconference.
The above-referenced meeting is open to stakeholders.
Further information may be found at:
The above-referenced meeting will be via web conference and teleconference.
The above-referenced meeting is open to stakeholders.
Further information may be found at:
The above-referenced meeting will be via web conference and teleconference.
The above-referenced meeting is open to stakeholders.
Further information may be found at:
The above-referenced meeting will be via web conference and teleconference.
The above-referenced meeting is open to stakeholders.
Further information may be found at:
The above-referenced meeting will be via web conference and teleconference.
The above-referenced meeting is open to stakeholders.
Further information may be found at:
The discussions at the meetings described above may address matters at issue in the following proceedings:
For more information, contact James Eason, Office of Energy Market Regulation, Federal Energy Regulatory Commission at (202) 502-8622 or
Take notice that on July 21, 2016, El Paso Natural Gas Company, L.L.C. (EPNG), Post Office Box 1087, Colorado Springs, Colorado 80944 filed a prior notice request pursuant to sections 157.205 and 157.208(f) of the Commission's regulations under the Natural Gas Act for authorization to decrease the Maximum Allowable Operating Pressure (MAOP) of a segment of its 6-inch O.D. Hayden Line (Line No. 2023) located in Gila County, Arizona. EPNG proposes to decrease the MAOP of this section of Line No. 2023 from 474 pounds per square inch gauge (psig) down to 85 psig to align the MAOP with the existing operations of Line No. 2023. The proposed MAOP reduction will not alter the capacity of EPNG's system, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at
Any questions regarding this Application should be directed to Francisco Tarin, Director Regulatory Department, El Paso Natural Gas Company, L.L.C., Post Office Box 1087, Colorado Springs, Colorado 80944, or by calling (719) 667-7517.
Any person or the Commission's staff may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenter's will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with he Commission's environmental review process. Environmental commenter's will not be required to serve copies of filed documents on all other parties. However, the non-party commentary, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
On July 25, 2016, Alcoa Power Generating Inc. (transferor) and Cube Yadkin Generation LLC (transferee) filed an application for the transfer of license of the Yadkin Hydroelectric Project No. 2197. The project is located on the Yadkin River in Stanly, Montgomery, Davidson, and Rowan counties, North Carolina. The project does not occupy federal lands.
The applicants seek Commission approval to transfer the license for the Yadkin Hydroelectric Project from the transferor to the transferee.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing comments, motions to intervene, and protests, is 15 days from the issuance date of this notice by the Commission. All documents may be filed electronically via the Internet. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
Take notice that on July 21, 2016, ANR Pipeline Company (ANR), 700 Louisiana Street, Houston, Texas 77002-2700, filed in Docket No. CP16-483-000, a prior notice request pursuant to sections 157.205, and 157.216 of the Federal Energy Regulatory Commission's (Commission) regulations under the Natural Gas Act (NGA), seeking authorization to abandon its Henry 4 injection well and associated well line located at its Loreed Storage Field in Osceola County, Michigan, all as more fully set forth in the application, which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at
Any questions regarding the filing should be directed to Linda Farquhar, Manager, Project Determinations & Regulatory Administration, ANR Pipeline Company, 700 Louisiana Street, Suite 700, Houston, Texas 77002-2700, by telephone at: 832-320-5685; or fax at: 832-320-6685; or email at:
Any person or the Commission's Staff may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenter's will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenter's will not be required to serve copies of filed documents on all other parties. However, the non-party commentary, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
Take notice that on July 29, 2016, Colin E. Cushnie submitted for filing, an application for authority to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act, 16 U.S.C. 825d(b) and part 45 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR part 45.2(c).
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Bayway Lateral Project involving construction and operation of facilities by Texas Eastern Transmission, LP (Texas Eastern) in the City of Linden, Union County, New Jersey. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before September 6, 2016.
If you sent comments on this project to the Commission before the opening of this docket on June 29, 2016, you will need to file those comments in Docket No. CP16-473-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
Texas Eastern provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC Web site (
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP16-473-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
Texas Eastern proposes to construct pipeline and aboveground facilities in the City of Linden, Union County, New Jersey: The Bayway Lateral Project would transport approximately 300,000 dekatherms per day from Texas Eastern's existing Line 38 to serve new commercial customers (the Linden Cogen Power Plant and the Phillips 66 Bayway Refinery).
The Bayway Lateral Project would consist of the following facilities:
• Approximately 2,300 feet of new 24-inch-diameter natural gas pipeline, most of which involves a horizontal directional drill crossing under the New Jersey Turnpike;
• a new fenced metering and regulating station; and
• related appurtenances and ancillary facilities.
The general location of the project facilities is shown in appendix 1.
Construction of the proposed facilities would disturb about 23.4 acres of land for the aboveground facilities and the pipeline. Following construction, Texas Eastern would maintain 6.79 acres for permanent operation of the project's facilities; the remaining acreage would be restored and revert to former uses.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils;
• land use;
• water resources, fisheries, and wetlands;
• cultural resources;
• vegetation and wildlife;
• air quality and noise;
• endangered and threatened species;
• public safety; and
• cumulative impacts.
We will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section on page 2.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Office (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If we publish and distribute the EA, copies of the EA will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the “Document-less Intervention Guide” under the “e-filing” link on the Commission's Web site. Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
On August 5, 2016, the Commission issued an order in Docket No. EL16-97-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into whether the formula rate protocols of NextEra Energy Transmission West, LLC may be unjust, unreasonable, unduly discriminatory or preferential.
The refund effective date in Docket No. EL16-97-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice.
EPA authorized the National Institute for Occupational Safety and Health (NIOSH), to access information which has been submitted to EPA under all sections of the Toxic Substances Control Act (TSCA). Some of the information may be claimed or determined to be Confidential Business Information (CBI). This is a renewal of a previous authorization.
Access to the confidential data occurred as a result of an on-going agreement between NIOSH and U.S. Environmental Protection Agency, which granted NIOSH access to all sections of TSCA CBI.
This action is directed to the public in general. This action may, however, be of interest to all who manufacture, process, or distribute industrial chemicals. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2003-0004, is available at
In July 2016, NIOSH requested access to certain materials, including TSCA CBI submitted to EPA. In a previous notice published in the
EPA is issuing this notice to inform all submitters of information under all sections of TSCA that the Agency will continue to provide NIOSH access to these CBI materials on a need-to-know basis only. All access to TSCA CBI under this agreement will take place at EPA Headquarters and the NIOSH Headquarters located at 1150 Tusculum Avenue, Cincinnati, OH 45226-1998.
Clearance for access to TSCA CBI under this arrangement may continue until terminated by either party.
NIOSH personnel were briefed on appropriate security procedures before they were permitted access to the CBI.
15 U.S.C. 2601
Environmental Protection Agency (EPA).
Notice.
EPA has authorized the U.S. Consumer Product Safety Commission (CPSC), to access information which has been submitted to EPA under all sections of the Toxic Substances Control Act (TSCA). Some of the information may be claimed or determined to be Confidential Business Information (CBI). This is a renewal of a previous authorization.
Access to the confidential data submitted to EPA under all sections of TSCA continues as a result of an ongoing Memorandum of Understanding (MOU) between CPSC and the EPA dated September 23, 1986, which granted CPSC immediate access to all sections of the TSCA CBI.
This action is directed to the public in general. This action may, however, be of interest to all who manufacture, process, or distribute industrial chemicals. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2003-0004, is available at
Under a MOU dated September 23, 1986, the CPSC agreed to EPA procedures governing access to CBI submitted to EPA under TSCA.
In accordance with 40 CFR 2.306(h), EPA has determined that CPSC requires access to CBI submitted to EPA under all sections of TSCA to perform successfully their responsibilities under the Consumer Product Safety Act and TSCA. CPSC's personnel are given access to information submitted to EPA under all sections of TSCA. Some of the information is claimed or determined to be CBI.
Under terms of the MOU, CPSC is not required to renew its access to TSCA CBI. EPA publishes this notice to the public from time to time to reiterate and confirm that access to TSCA CBI has been granted to another federal agency. In a previous notice published in the
EPA is issuing this notice to inform all submitters of information under all sections of TSCA that EPA provides the CPSC access to these CBI materials on a need-to-know basis only. All access to TSCA CBI under this MOU will take place at EPA Headquarters and CPSC's 5 Research Drive, Rockville, Maryland, site in accordance with EPA's TSCA CBI Protection Manual.
CPSC personnel are required to sign nondisclosure agreements and are briefed on appropriate security procedures before they are permitted access to TSCA CBI.
15 U.S.C. 2601
Environmental Protection Agency (EPA).
Notice.
EPA has authorized its contractor, Battelle Memorial Institute (BMI) of Columbus, OH, to access information which has been submitted to EPA under sections 4, 5, 6, 8(a), 11 and 21 of the Toxic Substances Control Act (TSCA). Some of the information may be claimed or determined to be Confidential Business Information (CBI).
Access to the confidential data occurred on or about July 14, 2016.
This action is directed to the public in general. This action may, however, be of interest to all who manufacture, process, or distribute industrial chemicals. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2003-0004 is available at
Under EPA contract number EP-W-16-017, contractor BMI of 505 King Avenue, Columbus, OH, is assisting the Office of Pollution Prevention and Toxics (OPPT) by providing statistical and technical support for the assessment of Toxics Substances. They are also providing statistical, mathematical, field data collection, and technical analysis support and planning for OPPT programs such as Lead Programs and other technology and exposure related studies.
In accordance with 40 CFR 2.306(j), EPA has determined that under EPA contract number EP-W-16-017, BMI required access to CBI submitted to EPA under section(s) 4, 5, 6, 8(a), 11 and 21 of TSCA to perform successfully the duties specified under the contract. BMI personnel were given access to information submitted to EPA under sections 4, 5, 6, 8(a), 11 and 21 of TSCA. Some of the information may be claimed or determined to be CBI.
EPA is issuing this notice to inform all submitters of information under sections 4, 5, 6, 8(a), 11 and 21 of TSCA that EPA has provided BMI access to these CBI materials on a need-to-know basis only. All access to TSCA CBI under this contract is taking place at EPA Headquarters and BMI's site located in Columbus, OH, in accordance with EPA's
Access to TSCA data, including CBI, will continue until June 12, 2021. If the contract is extended, this access will also continue for the duration of the extended contract without further notice.
BMI personnel have signed nondisclosure agreements and were briefed on appropriate security procedures before they are permitted access to TSCA CBI.
15 U.S.C. 2601
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control
Written PRA comments should be submitted on or before October 11, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
This collection also includes the third party disclosure requirement of 47 CFR Section 73.3580. This rule requires local public notice of the filing of the renewal application. For AM, FM, Class A TV and TV stations, these announcements are made on-the-air. For FM/TV Translators and AM/FM/TV stations that are silent, the local public notice is accomplished through publication in a newspaper of general circulation in the community or area being served.
47 CFR Section 73.3555 is also included in this information collection. Section 73.3555 states that in order to overcome the negative presumption set forth in 47 CFR Section 73.3555(d)(4) with respect to the combination of a major newspaper and television station, the applicant must show by clear and convincing evidence that the co-owned major newspaper and station will increase the diversity of independent news outlets and increase competition among independent news sources in the market, and the factors set forth in 47 CFR Section 73.3555(d)(5) will inform this decision. (OMB approval was previously received for the information collection requirements contained in this rule section (waiver showings/filings)).
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before September 12, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments Nicholas A. Fraser, OMB, via email:
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Federal Election Commission.
Notice.
Tuesday, August 16, 2016 at the conclusion of the open meeting.
999 E Street NW., Washington, DC
This meeting will be closed to the public.
Compliance matters pursuant to 52 U.S.C. 30109. Matters concerning participation in civil actions or proceeding, or arbitration. Information the premature disclosure of which would be likely to have a considerable adverse effect on the implementation of a proposed Commission action.
Judith Ingram, Press Officer. Telephone: (202) 694-1220.
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 25, 2016.
A. Federal Reserve Bank of St. Louis (David L. Hubbard, Senior Manager) P.O. Box 442, St. Louis, Missouri 63166-2034. Comments can also be sent electronically to
1. Notice by the
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of
A. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street NE., Atlanta, Georgia 30309. Comments can also be sent electronically to
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Home Owners' Loan Act (12 U.S.C. 1461
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the HOLA (12 U.S.C. 1467a(e)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 10(c)(4)(B) of the HOLA (12 U.S.C. 1467a(c)(4)(B)). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than September 6, 2016.
A. Federal Reserve Bank of Cleveland (Nadine Wallman, Vice President) 1455 East Sixth Street, Cleveland, Ohio 44101-2566. Comments can also be sent electronically to
National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of draft document for public comment.
On May 1, 2015, the Director of the National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), published a notice in the
Electronic or written comments on the draft IDLH Value Profile for peracetic acid must be received by October 11, 2016.
You may submit comments, identified by CDC-2016-0074 and docket number NIOSH 156-B, by either of the two following methods:
•
•
G. Scott Dotson, NIOSH, Education and Information Division, Robert A. Taft Laboratories, 1090 Tusculum Avenue, MS C-32, Cincinnati, Ohio 45226, telephone (513) 5 33-8540 (not a toll free number).
The proposed IDLH value and draft IDLH Value Profile for peracetic acid is based on the process outlined in the NIOSH Current Intelligence Bulletin 66—Derivation of Immediately Dangerous to Life or Health (IDLH) Values
To facilitate the review of this draft document, NIOSH requests that the following questions be taken into consideration:
1. Does this document clearly outline the health hazards associated with acute (or short-term) exposures to peracetic acid? If not, what specific information is missing from the document?
2. Are the rationale and logic behind the derivation of an IDLH value for peracetic acid clearly explained? If not, what specific information is needed to clarify the basis of the IDLH value?
3. Are the conclusions supported by the data?
4. Are the tables clear and appropriate?
5. Is the document organized appropriately? If not, what improvements are needed?
6. Are you aware of any scientific data reported in governmental publications, databases, peer-reviewed journals, or other sources that should be included within this document?
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 12, 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, 10A63, 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.
In the
In the first year of implementing the program standards, the State program conducts a baseline self-assessment to determine if it meets the elements of each standard. The State program should use the worksheets and forms contained in the draft program standards; however, it can use alternate forms that are equivalent. The State program maintains the documents and verifies records required for each standard. The information contained in the documents must be current and fit-for-use. If the State program fails to meet all program elements and documentation requirements of a standard, it develops a strategic improvement plan that includes the following: (1) The individual program element or documentation requirement of the standard that was not met, (2) improvements needed to meet the program element or documentation requirement of the standard, and (3) projected completion dates for each task.
In the
FDA estimates the burden of this collection of information as follows:
The burden has been calculated as 376 hours per respondent. This burden was determined by capturing the average amount of time for each respondent to assess the current state of the program and work toward implementation of each of the 10 standards contained in MFRPS. The hours per respondent will change as accounted for in the continuing improvement and self-sufficiency of the program.
Food and Drug Administration, HHS.
Notice; extension of comment period.
The Food and Drug Administration (FDA or we) is extending the comment period for the document entitled “Infectious Disease Next Generation Sequencing Based Diagnostic Devices: Microbial Identification and Detection of Antimicrobial Resistance and Virulence Markers; Draft Guidance for Industry and Food and Drug Administration Staff,” that appeared in the
FDA is extending the comment period on the document published May 13, 2016 (81 FR 29869). Submit either electronic or written comments by September 12, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• 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:
•
• 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
Heike Sichtig, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4526, Silver Spring, MD 20993-0002,
In the
The Agency received requests for a 30-day extension of the comment period for the document. Each request conveyed concern that the current 90-day comment period does not allow sufficient time to develop a meaningful or thoughtful response to the document on “Infectious Disease Next Generation Sequencing Based Diagnostic Devices: Microbial Identification and Detection of Antimicrobial Resistance and Virulence Markers; Draft Guidance for Industry and Food and Drug Administration Staff.”
FDA has considered the request and is extending the comment period for the document on “Infectious Disease Next Generation Sequencing Based Diagnostic Devices: Microbial Identification and Detection of Antimicrobial Resistance and Virulence Markers; Draft Guidance for Industry and Food and Drug Administration Staff” for 30 days, until September 10, 2016. The Agency believes that a 30-day extension allows adequate time for interested persons to submit comments without significantly delaying regulation on these important issues.
Office of Medicare Hearings and Appeals (OMHA), HHS.
Notice.
This quarterly notice lists the OMHA Case Processing Manual (OCPM) manual instructions that were published from March through June, 2016. This manual standardizes the day-to-day procedures for carrying out adjudicative functions, in accordance with applicable statutes, regulations and OMHA directives, and gives OMHA staff direction for processing appeals at the OMHA level of adjudication.
Amanda Axeen, by telephone at (571) 777-2705, or by email at
The Office of Medicare Hearings and Appeals (OMHA), a staff division within the Office of the Secretary of the U.S. Department of Health and Human Services (HHS), administers the nationwide Administrative Law Judge hearing program for Medicare claim, organization and coverage determination, and entitlement appeals under sections 1869, 1155, 1876(c)(5)(B), 1852(g)(5), and 1860D-4(h) of the Social Security Act (the Act). OMHA ensures that Medicare beneficiaries and the providers and suppliers that furnish items or services to Medicare beneficiaries, as well as Medicare Advantage Organizations (MAOs), Medicaid State Agencies, and applicable plans have a fair and impartial forum to address disagreements with Medicare coverage and payment determinations made by Medicare contractors, MAOs, or Part D Plan Sponsors (PDPSs), and determinations related to Medicare eligibility and entitlement, Part B late enrollment penalty, and income-related monthly adjustment amounts (IRMAA) made by the Social Security Administration (SSA).
The Medicare claim, organization and coverage determination appeals processes consist of four levels of administrative review, and a fifth level of review with the Federal district courts after administrative remedies under HHS regulations have been exhausted. The first two levels of review are administered by the Centers for Medicare & Medicaid Services (CMS) and conducted by Medicare contractors for claim appeals, by MAOs and an independent review entity for Part C organization determination appeals, or by PDPSs and an independent review entity for Part D coverage determination appeals. The third level of review is administered by OMHA and conducted by Administrative Law Judges. The fourth level of review is administered by the HHS Departmental Appeals Board (DAB) and conducted by the Medicare Appeals Council. In addition, OMHA and the DAB administer the second and third levels of appeal, respectively, for Medicare eligibility, entitlement, Part B late enrollment penalty, and IRMAA reconsiderations made by SSA; a fourth level of review with the Federal district courts is available after administrative remedies within SSA and HHS have been exhausted.
Sections 1869, 1155, 1876(c)(5)(B), 1852(g)(5), and 1860D-4(h) of the Act are implemented through the regulations at 42 CFR part 405 subparts I and J; part 417, subpart Q; part 422, subpart M; part 423, subparts M and U; and part 478, subpart B. As noted above, OMHA administers the nationwide Administrative Law Judge hearing program in accordance with these statutes and applicable regulations. As part of that effort, OMHA is establishing a manual, the OMHA Case Processing Manual (OCPM). Through the OCPM, the OMHA Chief Administrative Law Judge establishes the day-to-day procedures for carrying out adjudicative functions, in accordance with applicable statutes, regulations and OMHA directives. The OCPM provides direction for processing appeals at the OMHA level of adjudication for Medicare Part A and B claims; Part C organization determinations; Part D coverage determinations; and SSA eligibility and entitlement, Part B late enrollment penalty, and IRMAA determinations.
Section 1871(c) of the Act requires that we publish a list of all Medicare manual instructions, interpretive rules, statements of policy, and guidelines of general applicability not issued as regulations at least every 3 months in the
This quarterly notice provides the specific updates to the OCPM that have occurred in the 3-month period. A hyperlink to the available chapters on the OMHA Web site is provided below. The OMHA Web site contains the most current, up-to-date chapters and revisions to chapters, and will be available earlier than we publish our quarterly notice. We believe the OMHA Web site list provides more timely access to the current OCPM chapters for those involved in the Medicare claim, organization and coverage determination and entitlement appeals processes. We also believe the Web site offers the public a more convenient tool for real time access to current OCPM provisions. In addition, OMHA has a listserv to which the public can subscribe to receive immediate notification of any updates to the OMHA Web site. This listserv avoids the need to check the OMHA Web site, as update notifications are sent to subscribers as they occur. If accessing the OMHA Web site proves to be
This notice lists the OCPM chapters and subjects published during the quarter covered by the notice so the reader may determine whether any are of particular interest. We expect this notice to be used in concert with future published notices. The OCPM can be accessed at
The OCPM is used by OMHA adjudicators and staff to administer the OMHA program. It offers day-to-day operating instructions, policies, and procedures based on statutes and regulations, and OMHA directives.
The following is a list and description of new OCPM provisions and the subject matter. For future quarterly notices, we will list only the specific updates to the list of manual provisions that have occurred in the covered 3-month period. This information is available on our Web site at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Notice is hereby given of a meeting of the Big Data to Knowledge Multi-Council Working Group.
The teleconference meeting will be open to the public as indicated below. Individuals who plan to attend and need assistance should notify the contact person listed below in advance of the meeting.
This meeting is open to the public but is being held by teleconference only. No physical meeting location is provided for any interested individuals to listen to committee discussions. Any individual interested in listening to the meeting discussions must call: 1-877-668-4493 and use Passcode: 627 186 653 for access to the meeting.
Information is also available on the Office of the Associate Director for Data Science's home page:
Office of the Assistance Secretary for Housing, HUD.
New System of Records.
The Department's Office of the Assistant Secretary for Housing, Federal Housing Commissioner is proposing to create a new system of records, the HUD Certified Housing Counselor and Client Certificate of Housing Counseling Database. The Office of the Assistant Secretary for Housing, Federal Housing Commissioner provides support to a nationwide network of housing counseling agencies that provide products and services to current and prospective homeowners, homeowners at risk of default, renters, and the homeless. Public Law 111-203 (2010) amends section 106 of the Housing and Urban Development Act of 1968 to improve the effectiveness of housing counseling services in HUD programs by, among other things, requiring that the entities and individual counselors be certified by HUD as competent to provide such services. The new HUD Certified Housing Counselor and Client Certificate of Housing Counseling Database will allow the Department to collect and track certification examination requirements and client housing counseling certificates issued by counselors participating in the Department's Housing Counseling Program. A detailed description of the new system and its functions are contained in the Purpose statement of this notice.
Interested persons are invited to submit comments regarding this notice to the Rules Docket Clerk, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street SW., Room 10276, Washington, DC 20410-0500. Communications should refer to the above docket number and title. Faxed comments are not accepted. A copy of each communication submitted will be available for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address.
Frieda B. Edwards, Acting Chief Privacy Officer, 451 Seventh Street SW., Room 10139, Washington, DC 20410, telephone number 202-402-6828 (this is not a toll-free number). Individuals who are hearing- and speech-impaired may access this number via TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).
Publication of this notice allows the Department to satisfy its reporting requirement and keep an up-to-date accounting of its system of records publications. The new system of records incorporates Federal privacy requirements and HUD policy requirements. The Privacy Act places on Federal agencies principal responsibility for compliance with its provisions, by requiring Federal agencies to safeguard an individual's records against an invasion of personal privacy; protect records contained in an agency system of records from unauthorized disclosure; ensure that the records collected are relevant, necessary, current, and collected only for their intended use; and adequately safeguard the records to prevent misuse of such information. In addition, this notice demonstrates the Department's focus on following industry best practices to protect the personal privacy of the individuals covered by this system of records.
The system of records states the name and location of the record system, the authority for and manner of its operations, the categories of individuals that it covers, the type of records that it contains, the sources of the information in the records, the routine uses made of the records, and the type of exemptions in place for the records. Further, this
Pursuant to the Privacy Act and the Office of Management and Budget (OMB) guidelines, a report of this new system of records was submitted to OMB, the Senate Committee on Homeland Security and Governmental Affairs, and the House Committee on Oversight and Government Reform as instructed by paragraph 4c of Appendix l to OMB Circular No. A-130, “Federal Agencies Responsibilities for Maintaining Records About Individuals,” July 25, 1994 November 28, 2000.
5 U.S.C. 552a; 88 Stat. 1896; 42 U.S.C. 3535(d).
HUD Certified Housing Counselor and Client Certificate of Housing Counseling Database. The systems impacted are the Housing Counseling System (F11), the Computerized Home Underwriting Management System (F-17), the FHA Connection (F-17C), the Single Family Housing Enterprise Data Warehouse (D64A)), and the HUD Certified Housing Counselor and Client Certificate of Housing Counseling Database, which is a module of F11.
The database is physically located at the Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410, and accessed by HUD field offices with authorized access. Records are maintained and transmitted to this database from the virtual environment of the service providers under contract with HUD.
Individuals who intend to access the examination or training materials offered by HUD in association with the certification requirements, whether or not they become certified; individuals seeking HUD certified housing counselor certification; or housing counseling clients receiving housing counseling from an agency participating in HUD's Housing Counseling Program.
The categories of records collected by the HUD Certified Housing Counselor and Client Certificate of Housing Counseling Database are as follows:
(1) Individuals registering to access HUD Certified Housing Counselor training: Legal first and last name, mailing address, telephone number, email address, and fax number (if applicable).
(2) Individuals registering to access the HUD Housing Counselor Certification Examination: Legal first and last name, mailing address, telephone number, email address, fax number (if applicable), Social Security number (SSN), and employer's HUD Housing Counseling System (HCS) number (if registrant's employer is a housing counseling agency participating in HUD's Housing Counseling Program). Registrants have the option of providing demographic information: Race, ethnicity, gender and languages in which counseling services are offered. HUD is collecting information on languages to assess the number of examinees that might benefit from certification examination training materials being available in other languages. Information for fee payment will be collected by a third party vendor and will include credit card number, expiration date, and security code.
(3) Individuals registering for HUD Certified Housing Counselor status or for Agency Application Coordinator for FHA Connection: Legal first and last name, mailing address, telephone number, email address, fax number (if applicable), Social Security number (SSN), HUD Housing Counselor Certification System ID number, mother's maiden name, and employer's HUD Housing Counseling System (HCS) ID number, and verification of employing agency's name.
(4) Examination Information: Scores from housing counselor certification examination list of all test-takers who pass the certification examination.
(5) Client Certificate of Housing Counseling: Legal first and last name and address of the housing counseling client receiving counseling services from an agency participating in HUD's Housing Counseling Program; legal first and last name and the Counselor ID number of the counselor completing the client certificate of housing counseling; name, address, telephone number, Employer Identification Number (EIN), and HCS ID number of the agency participating in HUD's Housing Counseling Program; date and type of counseling service received; fees collected or waived; and whether counseling or education occurred in-person or remotely (telephone or Internet).
Certain records maintained by this database pertain to individuals in their role as a sole proprietorship under the Department's Housing Counseling Program. This information may reflect personal information; however, only the records that are personal, about the individual who is the subject of the record, are subject to the Privacy Act.
Subtitle D of title XIV of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (July 21, 2010); section 106 of the Housing and Urban Development Act of 1968, 12 U.S.C.§ 1701x; and the Housing and Community Development Act of 1987, 42 U.S.C. 3543, which authorizes HUD to collect SSNs.
The Dodd-Frank Wall Street Reform and Consumer Protection Act amended section 106 of the HUD Act of 1968 to require that all homeownership and rental housing counseling provided in connection with HUD programs be provided by a HUD Certified housing counselor. The proposed rule published on September 13, 2013, set a timeframe for completing the certification examination. The final rule is under review and will address the timeframe when published. HUD will announce the start date of the certification examination in a separate
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside HUD as a routine use pursuant to 5 U.S.C. 552a(b)(3), as follows:
(1) To appropriate agencies, entities, and persons to the extent that such disclosures are compatible with the purpose for which the records in this system were collected, as set forth by Appendix I
(2) To appropriate agencies, entities, and persons when:
(a) HUD suspects or has confirmed that the security or confidentiality of information in a system of records has been compromised;
(b) HUD has determined that, as a result of the suspected or confirmed compromise, there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of systems or programs (whether maintained by HUD or another agency or entity) that rely upon the compromised information; and
(c) HUD determines that the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with HUD's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm for purposes of facilitating responses and remediation efforts in the event of a data breach.
(3) To third party fee collection service for payment of examination fees.
Storage: Records in this system are stored electronically. The records may be stored on magnetic disc, tape, and digital media. There are no hardcopy records produced that require additional storage.
Access to electronic systems is by password and code identification card and is limited to authorized users. There are no hardcopy records produced that require an additional safeguard.
Electronic records are retrieved by name (first and last), agency HCS number, employer, and system ID number. There are no hardcopy records produced that require additional retrieval.
The records that reside in the system will be kept for 10 years after the final action is taken on the file, document, and/or transaction. Longer retention is authorized if required for business use (Reference: GRS 1.2 DAA-GRS-2013-0008-0001). After the record retention requirements have been met (a minimum of 10 years), the data and records can be purged or deleted from the system. If paper records are generated from the system, they can be archived at the local Federal Records Center after the final action or transaction has taken place. Accordingly, paper records will be destroyed by burning of shredding, and electronic records will be destroyed according to NIST Special Publication 800-88, “Guidelines for Media Sanitization.”
Danberry Carmon, Associate Deputy Assistant Secretary, Office of Housing Counseling, 451 Seventh Street SW., Room 9224, Washington, DC 20410.
For Information, assistance, or inquiries about the existence of records contact, Frieda B. Edwards, Acting Chief Privacy Officer, 451 Seventh Street SW., Room 10139, Washington, DC 20410, telephone number 202-402-6828. When seeking records about yourself from this system of records or any other HUD system of records, your request must conform with the Privacy Act regulations set forth in 24 CFR part 16. You must first verify your identity by providing your full name, current address, and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. In addition, your request should:
(1) Explain why you believe HUD would have information on you.
(2) Identify which office of HUD you believe has the records about you.
(3) Specify when you believe the records would have been created.
(4) Provide any other information that will help the Freedom of Information Act (FOIA) staff determine which HUD office may have responsive records.
If your request is seeking records pertaining to another living individual, you must obtain a statement from that individual certifying their agreement for you to access their records. Without the above information, HUD may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
The Department's rules for contesting contents of records and appealing initial denials appear in 24 CFR part 16.3, “Procedures for Inquiries.” Additional assistance may be obtained by contacting Frieda B. Edwards, Acting Chief Privacy Officer, 451 Seventh Street SW., Room 10139, Washington, DC 20410, or the HUD Departmental Privacy Appeals Officer, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street SW., Room 10110, Washington, DC 20410.
(1) Data is provided by State and tribal entities, or others who provide
(2) Data is provided by the requesting applicant at the time of their request for housing counseling certification. This data is generated in the processing of the homeownership and rental housing counseling certification process.
None.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications for recovery permits to conduct activities with the purpose of enhancing the survival of endangered species. The Endangered Species Act of 1973, as amended (Act), prohibits certain activities with endangered species unless a Federal permit allows such activity. The Act also requires that we invite public comment before issuing such permits.
To ensure consideration, please send your written comments by September 12, 2016.
Program Manager, Restoration and Endangered Species Classification, Ecological Services, U.S. Fish and Wildlife Service, Pacific Regional Office, 911 NE. 11th Avenue, Portland, OR 97232-4181. Please refer to the permit number for the application when submitting comments.
Colleen Henson, Fish and Wildlife Biologist, at the above address, or by telephone (503-231-6131) or fax (503-231-6243).
The Act (16 U.S.C. 1531
A permit granted by us under section 10(a)(1)(A) of the Act authorizes the permittee to conduct activities (including take or interstate commerce) with respect to U.S. endangered or threatened species for scientific purposes or enhancement of propagation or survival. Our regulations implementing section 10(a)(1)(A) of the Act for these permits are found at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
We invite local, State, and Federal agencies and the public to comment on the following applications. Please refer to the permit number for the application when submitting comments.
Documents and other information submitted with these applications are available for review by request from the Program Manager for Restoration and Endangered Species Classification at the address listed in the
The applicant requests a permit amendment to take (collect blood samples and attach radio transmitters) Mariana crow (
The applicant requests a new recovery permit to remove and reduce to possession (collect leaf cuttings)
All comments and materials we receive in response to this request will be available for public inspection, by appointment, during normal business hours at the address listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We provide this notice under section 10 of the Act (16 U.S.C. 1531
U.S. Geological Survey (USGS), Interior.
Notice of revision of a currently approved information collection, (1028-0096).
We (the U.S. Geological Survey) are notifying the public that we have submitted to the Office of Management and Budget (OMB) the information collection request (ICR) described below. To comply with the Paperwork Reduction Act of 1995 (PRA) and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this ICR. This collection is scheduled to expire on August 31, 2016.
To ensure that your comments on this ICR are considered, OMB must receive them on or before September 12, 2016.
Please submit written comments on this information collection directly to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs, Attention: Desk Officer for the Department of the Interior, via email: (
Robin O'Malley, National Climate Change and Wildlife Science Center, U.S. Geological Survey, 12201 Sunrise Valley Drive, Mail Stop 516, Reston, VA 20192 (mail); 703-648-4086 (phone); or
The U.S. Geological Survey (USGS) manages eight Department of the Interior (DOI) Climate Science Centers (CSC). Each CSC involves a cooperative agreement with a host institution. The initial host institution agreements will be re-competed, requiring collection of information from potential host institutions. In addition, this information collection addresses quarterly and annual reporting required of host institutions.
We again invite comments concerning this ICR as to: (a) Whether the proposed collection of information is necessary for the agency to perform its duties, including whether the information is useful; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) how to enhance the quality, usefulness, and clarity of the information to be collected; and (d) how to minimize the burden on the respondents, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this notice are a matter of public record. Before including your personal mailing address, phone number, email address, or other personally identifiable information in your comment, you should be aware that your entire comment, including your personally identifiable information, may be made publicly available at any time. While you can ask us and the OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) initial determination (“ID”) (Order No. 6) terminating Better Enterprise Co. Ltd. (“BEC”) based on a consent order stipulation and proposed consent order. The Commission terminates the investigation.
Amanda Pitcher Fisherow, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2737. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on May 9, 2016, based on a complaint and supplements filed on behalf of WCM Industries, Inc., (“complainant”) of Colorado Springs, Colorado. 81 FR 28104 (May 9, 2016). The complaint as supplemented alleges violations of Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the sale for importation, importation, or sale within the United States after importation of certain overflow and drain assemblies for bathtubs and components thereof by reason of infringement of certain claims of U.S. Patent No. 8,302,220; U.S. Patent No. 8,321,970; U.S. Patent No. 8,584,272; and U.S. Patent No. 9,200,436. The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337. The Notice of Investigation names Bridging Partners Corporation (“BPC”) of Taipei, Taiwan; BEC of Taipei, Taiwan; and Everflow Industrial Supply Corporation (“EIS”) of Changhua, Taiwan as respondents. BPC and EIS were previously terminated from the investigation based on consent order stipulations and consent orders. Order No. 3 (unreviewed).
On July 1, 2016, complainant filed a motion to terminate the investigation as to BEC based on a consent order stipulation and proposed consent order.
On July 11, 2016, the ALJ granted the motion. Order No. 6. The ALJ found that the consent order stipulation and the proposed consent order comply with the Commission's rules. The ALJ also found that there is no evidence that termination of the investigation as to BEC would be contrary to the public interest.
The Commission has determined not to review the subject ID and has issued a consent order. Since BEC is the last remaining respondent in the investigation, this action terminates the investigation.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
On the basis of the record
The Commission, pursuant to section 735(b) of the Act (19 U.S.C. 1673d(b)), instituted this investigation effective June 25, 2015, following receipt of a petition filed with the Commission and Commerce by the American HFC Coalition, and its members: Amtrol, Inc., West Warwick, Rhode Island; Arkema, Inc., King of Prussia, Pennsylvania; The Chemours Company FC, LLC, Wilmington, Delaware; Honeywell International Inc., Morristown, New Jersey; Hudson Technologies, Pearl River, New York; Mexichem Fluor Inc., St. Gabriel, Louisiana; Worthington Industries, Inc., Columbus, Ohio; and District Lodge 154 of the International Association of Machinists and Aerospace Workers.
The Commission made this determination pursuant to section 735(b) of the Act (19 U.S.C. 1673d(b)). It completed and filed its determination in this investigation on August 5, 2016. The views of the Commission are contained in USITC Publication 4629 (August 2016), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has issued a limited exclusion order denying entry of certain document cameras and software for use therewith and a cease and desist order against QOMO HiteVision, LLC (“QOMO”). The investigation is terminated.
Amanda Pitcher Fisherow, Esq., Office of the General Counsel, U.S.
The Commission instituted this investigation on September 24, 2015, based on a complaint filed on behalf of Pathway Innovations & Technologies, Inc. of San Diego, California (“Complainant”). 80 FR 57642 (September 24, 2015). The complaint alleges violations of Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the sale for importation, importation, or sale within the United States after importation of certain document cameras and software for use therewith by reason of infringement of certain claims of U.S. Design Patent No. D647,906; U.S. Design Patent No. D674,389; U.S. Design Patent No. D715,300; and U.S. Patent No. 8,508,751 (“the '751 patent”). The Commission's notice of investigation named the following respondents: Recordex USA, Inc., of Long Island City, New York (“Recordex”); QOMO of Wixom, Michigan; and Adesso, Inc. of Walnut, California (“Adesso”). The Office of Unfair Import Investigations was named as a party but has subsequently withdrawn from the investigation. Adesso was terminated based on a consent order stipulation and consent order. Order No. 5 (unreviewed) (Nov. 23, 2015). QOMO was found to be in default. Order No. 10 (unreviewed) (Dec. 7, 2015). Recordex was terminated based on settlement. Order No. 19 (unreviewed) (May 13, 2016).
On December 7, 2015, the Commission determined not to review an initial determination finding QOMO in default and later requested briefing from the parties and the public on the issues of remedy, the public interest, and bonding. Complainant filed a submission requesting a limited exclusion order (“LEO”) and a cease and desist order (“CDO”) against QOMO, and arguing that none of the public interest factors weighs against granting the LEO and CDO. Complainant requested that QOMO not be afforded the opportunity to import during the period of Presidential review, or in the alternative, that the bond be set at 100 percent of entered value in accordance with the Commission practice for defaulting respondents.
The Commission finds that the statutory requirements for relief under section 337(g)(1), (19 U.S.C. 1337(g)(1)) are met with respect to QOMO. In addition the Commission finds that the public interest factors enumerated in section 337(g)(1) do not preclude issuance of the statutory relief.
The Commission has determined that the appropriate remedy in this investigation is (1) an LEO prohibiting the unlicensed entry of certain document cameras and software for use therewith that are manufactured abroad by or on behalf of, or imported by or on behalf of, QOMO that infringe one or more of claims 1-10, 12-18, and 20 of the '751 patent; and (2) a CDO prohibiting QOMO from importing, selling, marketing, advertising, distributing, transferring (except for exportation), and soliciting United States agents or distributors for certain document cameras and software for use therewith that infringe one or more of claims 1-10, 12-18, and 20 of the '751 patent.
Finally, the Commission has determined that the bond during the period of Presidential review pursuant to 19 U.S.C. 1337(j) shall be in the amount of 100 percent of the entered value of the imported articles that are subject to the LEO or CDO. The Commission's orders were delivered to the President and to the United States Trade Representative on the day of their issuance.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at EDIS,
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at USITC.
The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Rockwell Automation, Inc. on August 5, 2016. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3165”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until September 12, 2016.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Anita Scheddel, Program Analyst, Explosives Industry Programs Branch, 99 New York Ave. NE., Washington, DC 20226 at email:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room3E-405B, Washington, DC 20530.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until September 12, 2016.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Neil Troppman, National Tracing Center, Law Enforcement Support Branch, 244 Needy Road, Martinsburg, WV 25405, at telephone number: 304-260-3643. Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or sent to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until October 11, 2016.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Rinell Lawrence, Firearms Industry Program Branch, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), 99 New York Ave. NE., Washington, DC 20226 at email and telephone:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E-405B, Washington, DC 20530.
Notice is hereby given that, on July 14, 2016, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Famous Industries, Inc., San Francisco, CA; and Progress Software, Bedford, MA, have withdrawn as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and Node.js Foundation intends to file additional written notifications disclosing all changes in membership.
On August 17, 2015, Node.js Foundation filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on April 26, 2016. A notice was published in the
Notice is hereby given that, on July 7, 2016, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Sonics, Inc., Milpitas, CA; Tensilica, Inc., Santa Clara, CA; STMicroelectronics International, Amsterdam, THE NETHERLANDS; Analog Devices, Inc., Norwood, MA; Industrial Technology Research Institute of Taiwan, Hsinchu, TAIWAN; VIA Technologies, Inc., New Taipei City, TAIWAN; System Software Lab National Tsing Hua University, Hsinchu, TAIWAN; and Tsinghua University, Beijing, PEOPLE'S REPUBLIC OF CHINA, have withdrawn as parties to this venture. No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and HSA Foundation intends to file additional written notifications disclosing all changes in membership.
On August 31, 2012, HSA Foundation filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on April 12, 2016. A notice was published in the
Notice is hereby given that, on July 19, 2016, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and R Consortium intends to file additional written notifications disclosing all changes in membership.
On September 15, 2015, R Consortium filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on May 23, 2016. A notice was published in the
Notice is hereby given that, on June 23, 2016, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and MCDC intends to file additional written notifications disclosing all changes in membership.
On November 13, 2015, NCBDC filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
Notice is hereby given that, on July 20, 2016, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Ixia, Calabasas, CA, has withdrawn as a party to this venture.
In addition, Freescale Semiconductor, Inc., has changed its name to NXP Semiconductors, Austin, TX.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and Open Platform for NFV Project intends to file additional written notifications disclosing all changes in membership.
On October 17, 2014, Open Platform for NFV Project filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on May 2, 2016. A notice was published in the
Notice is hereby given that, on July 14, 2016, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and ODPi intends to file additional written notifications disclosing all changes in membership.
On November 23, 2015, ODPi filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on April 29, 2016. A notice was published in the
Drug Enforcement Administration, Department of Justice
30-day notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until September 12, 2016.
If you have comments 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 Michael J. Lewis, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812 or sent to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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If additional information is required please 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.
Drug Enforcement Administration, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until September 12, 2016.
If you have comments 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 Michael J. Lewis, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812 or sent to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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Federal Bureau of Investigation, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Federal Bureau of Investigation (FBI), Criminal Justice Information Services (CJIS) Division, 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 11, 2016.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Gerry Lynn Brovey, Supervisory Information Liaison Specialist, FBI, CJIS, Resources Management Section, Administrative Unit, Module C-2, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306 (facsimile: 304-625-5093). Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20530 or sent to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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Drug Enforcement Administration, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Drug Enforcement
Comments are encouraged and will be accepted for an additional 30 days until September 12, 2016.
If you have comments 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 Michael J. Lewis, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812 or sent to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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Criminal Division, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Criminal Division, United States Victims of State Sponsored Terrorism Fund, 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 11, 2016.
Additional comments especially on the estimated public burden or associated response time, suggestions, or need for a copy of the proposed information collection instrument with instructions, or additional information, should be directed to either the Special Master, United States Victims of State Sponsored Terrorism Fund, or the Chief, Program Management and Training Unit, Asset Forfeiture and Money Laundering Section, Criminal Division, Department of Justice, 950 Pennsylvania Avenue NW., Washington, DC 20530-0001, telephone (202) 353-2046.
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:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
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The information collected from the Fund's Application Form will be used to determine whether applicants are eligible for compensation from the Fund, and if so, the amount of compensation to be awarded. The Application Form consists of parts related to eligibility and compensation. The eligibility parts seek the information required by the Justice for Victims of State Sponsored Terrorism Act to determine whether a claimant is eligible for payment from the Fund, including information related to: Participation in federal lawsuits against a state sponsor of terrorism under the Foreign Sovereign Immunities Act; being taken and held hostage at the U.S. Embassy in Tehran, Iran, from the period beginning November 4, 1979, and ending January 20, 1981; or being spouses and children of such hostages. The compensation parts seek the information required by the Justice for Victims of State Sponsored Terrorism Act to determine the amount of compensation for which the claimant is eligible. Specifically, the compensation parts seek information regarding any payments from sources other than the Fund that the claimant received, is entitled to receive, or is scheduled to receive, as a result of the act of international terrorism by a state sponsor of terrorism and the amount of compensatory damages awarded the claimant in a final judgment.
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If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E-405B, Washington, DC 20530.
Employment and Training Administration, U.S. Department of Labor.
Notice of meeting.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (FACA) (Pub. L. 92-463), as amended, and Section 166(i)(4) of the Workforce Innovation and Opportunity Act (WIOA) [29 U.S.C. 3221(i)(4))], notice is hereby given of the next meeting of the Native American Employment and Training Council (Council), as constituted under WIOA.
The meeting will begin at 9:00 a.m., (Pacific Time) on Thursday, August 25, 2016, and continue until 5:00 p.m. that day. The meeting will reconvene at 9:00 a.m., on Friday, August 26, 2016, and adjourn at 4:00 p.m. that day. The period from 3:00 p.m. to 5:00 p.m. on August 25, 2016, will be reserved for participation and comment by members of the public.
The meeting will be held at the Peppermill, 2707 South Virginia Street, Reno, Nevada 89502.
Athena R. Brown, DFO, Division of Indian and Native American Programs, Employment and Training Administration, U.S. Department of Labor, Room S-4209, 200 Constitution Avenue NW., Washington, DC 20210. Telephone number (202) 693-3737 (VOICE) (this is not a toll-free number).
The meeting will be open to the public. Members of the public not present may submit a written statement on or before August 22, 2016, to be included in the record of the meeting. Statements are to be submitted to Athena R. Brown, Designated Federal Officer (DFO), U.S. Department of Labor, 200 Constitution Avenue NW., Room S-4209, Washington, DC 20210. Persons who need special accommodations should contact Craig Lewis at (202) 693-3384, at least two business days before the meeting. The formal agenda will focus on the following topics: (1) Implementation of the Workforce Innovation and Opportunity Act (WIOA); (2) Overview of WIOA and the Section 166 Program, (3) Performance Indicators and Discussion of Additional Measures; (4) Training and Technical Assistance; (5) Council and Workgroup Updates and Recommendations; (6) Strategic Objectives for Program Year 2017-2018; and (7) Public Comment.
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Coal Mine Dust Sampling Devices,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before September 12, 2016.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-MSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Contact Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Coal Mine Dust Sampling Devices information collection requirements codified in regulations 30 CFR 74.7, 74.8, 74.11, 74.13, and 74.16. Continuous Personal Dust Monitors (CPDMs) determine the concentration of respirable dust in coal mines. CPDMs must be designed and constructed for coal miners to wear and operate without impeding their ability to perform their work safely and effectively. CPDMs must also be durable to perform reliably in normal working conditions of coal mines. Paperwork requirements imposed on applicants are related to the application process and CPDM testing procedures. Federal Mine Safety and Health Act of 1977 sections 101(a) and 103(h) authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on September 30, 2016. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces its intent to hold proposal review meetings throughout the year. The purpose of these meetings is to provide advice and recommendations concerning proposals submitted to the NSF for financial support. The agenda for each of these meetings is to review and evaluate proposals as part of the selection process for awards. The review and evaluation may also include assessment of the progress of awarded proposals. The majority of these meetings will take place at NSF, 4201 Wilson Blvd., Arlington, Virginia 22230.
These meetings will be closed to the public. The proposals being reviewed include information of a proprietary or confidential nature, including technical information; financial data, such as salaries; and personal information concerning individuals associated with the proposals. These matters are exempt under 5 U.S.C. 552b(c), (4) and (6) of the Government in the Sunshine Act. NSF will continue to review the agenda and merits of each meeting for overall compliance of the Federal Advisory Committee Act.
These closed proposal review meetings will not be announced on an individual basis in the
Nuclear Regulatory Commission.
Confirmatory order; issuance.
The U.S. Nuclear Regulatory Commission (NRC) issued a confirmatory order (Order) to AREVA, Inc. (AREVA), confirming the agreement reached in an Alternative Dispute Resolution mediation session held on June 13, 2016. This Order will resolve the issues that were identified during an NRC records review related to AREVA's export of nuclear components and equipment.
The confirmatory order was issued on August 4, 2016.
Please refer to Docket ID NRC-2016-0163 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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Robert Fretz, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-001; telephone: 301-415-1980, email:
The text of the Order is attached.
For the Nuclear Regulatory Commission.
AREVA, Inc. (AREVA) is a multinational corporation specializing in nuclear power and renewable energy services, including the export of reactor components under Part 110 of title 10 of the
This Confirmatory Order (CO) is the result of an agreement reached during an Alternative Dispute Resolution (ADR) mediation session conducted on June 13, 2016.
On September 9, 2015, AREVA met with representatives from the NRC's Office of Nuclear Material Safety and Safeguards (NMSS) to discuss licensee responsibilities under the Protocol Additional to the Agreement between the United States of America and the International Atomic Energy Agency for the Application of Safeguards in the United States of America (hereinafter referred to as the Additional Protocol). During the meeting, AREVA officials informed NMSS representatives that AREVA may have exported reactor components to other countries without making the notifications required by the Additional Protocol and the NRC's regulations in 10 CFR 110.54(a)(1). Subsequently, AREVA conducted a review of its export activities, and later notified the NRC that it had exported zirconium tubes between June 1, 2009, and March 18, 2015, some of which went to nuclear power plants located in Taiwan, and that it had exported a reactor coolant pump (RCP) to France on July 25, 2014. On October 29, 2015, AREVA provided the required export notifications to the U.S. Department of Commerce (DOC), and on November 3, 2015, this information was provided to the NRC (NRC's Agencywide Documents Access and Management System (ADAMS) Accession No. ML16056A349).
Section 110.54(a)(1) of 10 CFR states, in part, that reports of exports of nuclear facilities and equipment shipped during the previous quarter must be made by licensees making exports under the general license or specific license in 10 CFR part 110 by January 15, April 15, July 15, and October 15 of each year on DOC/NRC Forms AP-M or AP-13, and associated forms. In accordance with 10 CFR 110.54(a)(2), these required reports must be submitted to the DOC, Bureau of Industry and Security. The reports must contain information on all nuclear facilities, equipment, and non-nuclear materials listed in Annex II of the Additional Protocol.
Between June 2009 and March 2015, AREVA failed to report exports under the general license and specific license in 10 CFR part 110 of nuclear equipment shipped during the previous quarter. Specifically, AREVA exported nuclear reactor equipment and components from the United States including components described in paragraphs (4), (5), (6), and (7) of Appendix A to 10 CFR part 110 and failed to submit quarterly reports to the NRC and DOC as noted by the following examples:
Reactor coolant pumps, reactor pressure tubes, fuel channels, zirconium tubes designed and prepared for use as fuel cladding, and zirconium fuel assembly guide tubes are nuclear reactor equipment and components described in paragraphs (4), (5), (6), and (7) of Appendix A to 10 CFR part 110, and are listed in Annex II of the Additional Protocol. France and Taiwan are also listed in 10 CFR 110.26(b) as approved destinations for the export of nuclear reactor components under a general license. As such, AREVA was required by 10 CFR 110.54(a)(1) to submit quarterly export reports to the DOC, Bureau of Industry and Security.
NRC staff reviewed the export notifications submitted on November 3, 2015, and during this review, identified a second apparent violation regarding the export of an RCP (without motor) to France without a specific license authorizing the export (as listed in example 6 above). Section 110.5 of 10 CFR states, in part, that no person may export any nuclear equipment listed in 10 CFR 110.8 unless authorized by a general or specific license issued under 10 CFR part 110. Section 110.20(a) of 10 CFR states that a person may use an NRC general license as authority to export or import nuclear equipment or material, if the nuclear equipment or material to be exported or imported is covered by the NRC general licenses described in § 110.21 through 110.27. If an export or import is not covered by an NRC general license, a person must file an application for a specific license in accordance with § 110.31 through 32.
On July 25, 2014, AREVA exported nuclear equipment listed in 10 CFR 110.8 to France that was not authorized by a general license and without filing an application for a specific license in accordance with § 110.31 through 32. In its annual report of exports required by 10 CFR 110.54(c), dated January 16, 2015 (non-public), AREVA stated that it had exported an “RCP” under the 10 CFR 110.26 general license. AREVA inappropriately keyed the component to paragraph (9) of Appendix A to 10 CFR part 110, “Illustrative List of Nuclear Reactor Equipment under NRC Export Licensing Authority.” However, reactor primary coolant pumps are described in paragraph (4) of Appendix A to 10 CFR part 110 and are, therefore, not permitted to be exported under the NRC general license in 10 CFR 110.26.
On April 21, 2016, the NRC issued a letter to AREVA that detailed the results of the NRC's findings, as described above, and outlined two apparent violations (ADAMS Accession No. ML16110A402). The apparent violation involved (1) the failure to make quarterly reports of the export of nuclear reactor components subject to the Additional Protocol and as required by the NRC's regulations; and (2) the export of an RCP (without motor) to France without a specific license authorizing the export.
The first apparent violation impacted the U.S. Government's ability to comply with international obligations for reporting certain exports under the Additional Protocol. The second apparent violation raised significant regulatory concerns because an RCP is considered a “major reactor component” and requires the highest level of review under the Atomic Energy Act of 1954, as amended, and 10 CFR part 110. Specifically, the export of an RCP would require a NRC Commission-level review and solicitation of U.S. Executive Branch views including government-to-government assurances from EURATOM in accordance with the Agreement for Cooperation in the Peaceful Uses of Nuclear Energy between the European Atomic Energy Community and the United States of America (commonly referred to as the Section 123 Agreement). AREVA's failure to apply for and receive an export license significantly impacted the NRC's regulatory process.
In the April 21, 2016, letter the NRC offered AREVA the opportunity to: (1) request a Predecisional Enforcement Conference (PEC) or (2) request an ADR. In response to the NRC's letter, AREVA requested to use the NRC's ADR process. On June 13, 2016, AREVA and the NRC met in an ADR session mediated by a professional mediator, arranged through Cornell University's Institute on Conflict Resolution. The ADR process is one in which a neutral mediator, with no decision-making authority, assists the parties in reaching an agreement on resolving any differences regarding the dispute. This CO is issued pursuant to the agreement reached during the ADR process.
During the ADR session, AREVA and the NRC reached a preliminary settlement agreement. The elements of the agreement included corrective actions that AREVA stated were completed as described below and future actions as follows:
On July 29, 2016, AREVA consented to issuing this Order with the commitments, as described in Section V below (ADAMS Accession No. ML16176A139). AREVA further agreed that this Order is to be effective upon issuance and that it has waived its right to a hearing.
Because AREVA has agreed to take additional actions to address NRC concerns, as set forth in Section III above, the NRC has concluded that its concerns can be resolved through issuance of this CO.
I find that AREVA's commitments as set forth in Section V are acceptable and necessary and conclude that with these commitments, the public health and safety are reasonably assured. In view of the foregoing, I have determined that public health and safety require that AREVA's commitments be confirmed by this Order. Based on the above and AREVA's consent, this CO is effective upon issuance.
Accordingly, pursuant to Sections 81, 161b, 161i, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR part 110, IT IS HEREBY ORDERED, EFFECTIVE UPON ISSUANCE, THAT AREVA COMPLETE THE FOLLOWING ACTIONS:
In the event of the transfer of ownership of AREVA to another entity, the terms and conditions set forth hereunder shall continue to apply to the new entity and accordingly survive any transfer of ownership.
Unless otherwise specified, all dates are from the date of issuance of the CO.
The Director, Office of Enforcement, may, in writing, relax or rescind any of the above conditions upon demonstration by AREVA of good cause.
In accordance with 10 CFR 2.202 and 10 CFR 2.309, any person adversely affected by this CO, other than AREVA, may request a hearing within 30 calendar days of the date of issuance of this CO. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be made in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and include a statement of good cause for the extension.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139, August 28, 2007, as amended at 77 FR 46562, August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least ten (10) days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System (EIE), users will be required to install a Web browser plug-in from the NRC Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene through the EIE System. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory E-Filing system may seek assistance by contacting the NRC Electronic Filing Help Desk through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
If a person (other than AREVA) requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this CO and shall address the criteria set forth in 10 CFR 2.309(d) and (f).
If a hearing is requested by a person whose interest is adversely affected, the Commission will issue an order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this CO should be sustained.
In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section V above shall be final 30 days from the date of this CO without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section V shall be final when the extension expires if a hearing request has not been received.
For the Nuclear Regulatory Commission,
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the termination of the auditor of Chang-On International, Inc. (China) because it has not filed any periodic reports since the period ended June 30, 2014. Its stock is quoted on OTC Link (previously “Pink Sheets”), operated by OTC Markets Group Inc. (“OTC Link”), under the ticker symbol CAON.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the termination of the auditor of Computer Graphics International Inc. (China) because it has not filed any periodic reports since the period ended December 31, 2013. Its stock is quoted on OTC Link under the ticker symbol CGII.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the termination of the auditor of Guanwei Recycling Corp. (China) because it has not filed any periodic reports since the period ended March 31, 2014. Its stock is quoted on OTC Link under the ticker symbol GPRC.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the termination of the auditor of John D. Oil and Gas Company (Ohio) because it has not filed any periodic reports since the period ended December 31, 2011. Its stock is quoted on OTC Link under the ticker symbol JDOGQ.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the termination of the auditor of Legal Life Plans, Inc. (Tennessee) because it has not filed any periodic reports since the period ended August 31, 2013. Its stock is quoted on OTC Link under the ticker symbol LLFP.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the termination of the auditor of Powder River Coal Corp. (Wyoming) because it has not filed any periodic reports since the period ended September 30, 2013. Its stock is quoted on OTC Link under the ticker symbol POWD.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the termination of the auditor of Reunion Industries, Inc. (Pennsylvania) because it has not filed any periodic reports since the period ended September 30, 2007. Its stock is quoted on OTC Link under the ticker symbol RUNI.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the termination of the auditor of ThermoEnergy Corporation (Massachusetts) because it has not filed any periodic reports since the period ended March 31, 2014. Its stock is quoted on OTC Link under the ticker symbol TMEN.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on August 9, 2016, through 11:59 p.m. EDT on August 22, 2016.
By the Commission.
Pursuant to Section 19(b)(1)
Pursuant to the provisions of Section 19(b)(1) under the Securities Exchange Act of 1934 (“Act”),
The text of the proposed rule change is available at 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 these statement [sic] may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule filing is to correct the chart in Rule 11.270(c), which sets forth the numerical guidelines for determining if a transaction that is the subject of a complaint shall be found to be clearly erroneous, to specify such guidelines for leveraged ETFs and ETNs. Due to an oversight, the last line of the chart, entitled “Leveraged ETF/ETN” does not contain all necessary language with respect to the applicable numerical guidelines. Accordingly, IEX proposes to amend the chart so that the last line provides that the numerical guidelines during regular market hours, as well as the Pre-Market Session and Post-Market Session, shall be the “Regular Market Hours Numerical Guidelines multiplied by the leverage multiplier (
The Exchange notes that Rule 11.270 is substantially identical to Bats BZX Exchange, Inc. f/k/a BATS Exchange, Inc. (“BZX”) Rule 11.17, which in turn is substantially identical to corresponding rules of the other U.S. securities exchanges that trade equities securities and of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
IEX believes that the proposed rule change is consistent with the provisions of Section 6(b)
IEX does not believe that the proposed rule change will result in any burden on competition because IEX is merely correcting its rule to correct an inadvertent omission of necessary text.
Written comments were neither solicited nor received.
The Exchange has designated this rule filing as non-controversial under Section 19(b)(3)(A)
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.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 49—Equities (Emergency Powers) by (1) replacing the text of current Rule 49—Equities with the Exchange's proposed disaster recovery plans; and (2) moving the text of current Rule 431 (Exchange Backup Systems and Mandatory Testing) relating to Exchange member organizations to Rule 49—Equities. This Amendment No. 1 supersedes the original filing in its entirety. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 49—Equities (“Rule 49”), which addresses the Exchange's emergency powers, by (1) replacing the text of current Rule 49 with the Exchange's proposed disaster recovery plans; and (2) moving the text of current Rule 431 (Exchange Backup Systems and Mandatory Testing) relating to Exchange equity member organizations to Rule 49 with no substantive changes. The Exchange further proposes to amend Rules 0—Equities and 431 to specify that Rule 431 would govern Exchange Backup Systems and Mandatory Testing for Exchange ATP Holders only.
The Exchange proposes to amend Rule 49 in two ways. First, the Exchange proposes to replace the current disaster recovery plan, pursuant to which NYSE Arca, Inc. (“NYSE Arca”), the Exchange's affiliate, will act on behalf of and at the direction of the Exchange for auctions and specified regulatory messages in Exchange-listed securities, with a new disaster recovery plan that the Exchange would implement if the Exchange's primary data center is impaired. Under the proposed disaster recovery plan, the Exchange would no longer rely on NYSE Arca to act on its behalf. Rather, the Exchange would operate as a fully electronic exchange under its own trading rules and would maintain its own order book in its disaster recovery facility. In addition, quotes and trades would be published to the securities information processor (“SIP”) as quotes and trades of the Exchange. To reflect this change, the Exchange proposes to delete Rule 49 (Emergency Powers) in its entirety and replace it with new proposed Rule 49(a).
Second, the Exchange proposes to move text from Rule 431 governing Exchange Backup Systems and Mandatory Testing relating to equity member organizations, to proposed Rule 49(b)(N) with only non-substantive changes to update sub-paragraph numbering and cross references. Because Rule 431 relates to mandatory testing of the Exchange's disaster recovery facility, as required by Rule 1004 of Regulation SCI,
Because Rule 431 would pertain only to options trading, the Exchange proposes to amend that rule to delete references to the terms “member,” “member organization,” and “designated market maker” and use the term “ATP Holder” instead. The Exchange also proposes to amend Rule 0—Equities to remove the reference to Rule 431 as being applicable to equities trading.
In 2012, the Exchange adopted Rule 49 to provide the Exchange with the authority to declare an Emergency Condition with respect to trading on or through the systems and facilities of the Exchange and to act as necessary in the public interest and for the protection of investors.
Under Rule 49, if the Exchange declares an Emergency Condition, the Exchange will halt all trading on the Exchange's systems and facilities and purge any unexecuted orders from the Exchange's own systems and facilities as soon as practicable following declaration of the Emergency Condition.
In addition, bids and offers for Exchange-listed securities entered on or through the systems and facilities of NYSE Arca during the Emergency Condition will be reported to the Consolidated Quotation system as bids and offers of NYSE Arca, except that the opening quote will be reported to the Consolidated Quotation System as a bid and/or offer of both the Exchange and NYSE Arca and any re-opening quote will be reported to the Consolidated Quotation System as a bid and/or offer of the Exchange only. Bids and offers for Exchange-listed securities executed on or through the systems and facilities of NYSE Arca during the Emergency Condition will be reported to the Consolidated Tape as executions of NYSE Arca, except for executions in the opening, re-opening, or closing transactions, which will be reported as Exchange executions and Exchange volume only.
Since adopting Rule 49, the Exchange has amended its rules to provide for Exchange-facilitated procedures for opening and closing securities if either a Designated Market Maker (“DMM”) or the Exchange's 11 Wall Street facilities are unavailable.
Proposed Rule 49(a) would govern the Exchange's Disaster Recovery Facility. As proposed, Rule 49(a)(1) would provide that, as part of its business continuity and disaster recovery plans, the Exchange maintains a “Disaster Recovery Facility,” which is a secondary data center located in a geographically diverse location, as required by Regulation SCI.
Proposed Rule 49(a)(2) would specify the procedures that the Exchange would follow if the Exchange determines under Rule 51—Equities (“Rule 51”) to trade Exchange-traded securities on its Disaster Recovery Facility. Currently, Rule 49(a)(1) provides that a qualified Exchange officer shall have the authority to declare an Emergency Condition and current Rule 49(a)(3)(B) defines the term “qualified Exchange officer” to mean the ICE Chief Executive Officer or his or her designee, or the Chief Regulatory Officer of the Exchange or his or her designee. The rule further provides that in the event that none of these individuals is able to act due to incapacitation, the most senior surviving officer of ICE or the Exchange shall be a “qualified Exchange officer” for purposes of Rule 49.
Rather than specifying separately in Rule 49 who can act under that rule, the Exchange proposes to include in Rule
The Exchange believes that the authority to determine to trade Exchange-traded securities in its Disaster Recovery Facility should similarly be vested with the CEO of the Exchange. Specifically, the CEO may already take the above-specified actions under Rule 51(b) if there is a loss or interruption of facilities utilized by the Exchange. The Exchange believes that a loss or interruption of the Exchange's primary data center is an event contemplated in Rule 51(c), and therefore the authority to take an action based on that event, whether suspending trading or determining to use the Disaster Recovery Facility, should be determined by the same person. Accordingly, the Exchange proposes to add proposed Rule 51(b)(v) to specify that the CEO of the Exchange may determine to trade securities on the Exchange's Disaster Recovery Facility pursuant to Rule 49.
The Exchange also proposes non-substantive amendments to Rule 51(b) to provide that the CEO “may take any of the following actions” rather than to provide that the CEO “shall have the power to.” The Exchange believes the proposed amendment makes clear that the CEO may invoke one or more of the actions specified in Rule 51(b)(i)-(v). For the same reason, the Exchange proposes to make a conforming amendment to Rule 51(c) to specify that the CEO shall take
The Exchange proposes that the following would apply if the Exchange determines under Rule 51 to trade Exchange-traded securities on its Disaster Recovery Facility:
• Proposed Rule 49(a)(2)(A) would provide that the 11 Wall Street facilities would not be available for trading if the Exchange is operating from its Disaster Recovery Facility. Because the trading systems in the Exchange's Disaster Recovery Facility would not have connectivity to DMM and Floor broker trading systems, the Exchange would operate as a fully electronic exchange when operating out of its Disaster Recovery Facility, even if 11 Wall Street facilities were not impacted.
• Proposed Rule 49(a)(2)(B) would provide that opening and reopening auctions would be subject to Rule 123D(a)(2)-(6)—Equities and closing auctions would be subject to Supplementary Material .10 to Rule 123C—Equities. Because there would be no Trading Floor or DMM connectivity, the Exchange proposes that, when operating out of its Disaster Recovery Facility, the Exchange would facilitate all openings, reopenings, and closings, as provided for in the enumerated rules. As noted above, this is the Exchange's current business continuity plan if the 11 Wall Street facilities were unavailable, but the Exchange could continue to operate out of its primary data center.
• Proposed Rule 49(a)(2)(C) would provide that any unexecuted orders entered into Exchange systems before trading on the Disaster Recovery Facility begins would be deemed cancelled and would be purged from Exchange systems. This proposed rule text is based on current Rule 49(b)(1)(B), which provides that when an Emergency Condition is declared, the Exchange will purge any unexecuted orders from the Exchange's own systems and facilities as soon as practicable following declaration of the Emergency Condition. The Exchange proposes to modify this text in proposed Rule 49(a)(2)(C) to make clear that any unexecuted orders entered into Exchange systems before trading on the Disaster Recovery Facility begins would be deemed cancelled because depending on the scope of the disruption, the Exchange may not be able to transmit cancellation messages for unexecuted orders.
• Proposed Rule 49(a)(2)(D) would provide that member organizations registered as DMMs would not be subject to any DMM obligations or benefits under Exchange rules while securities trade on the Disaster Recovery Facility.
Proposed Rule 49(a)(3) would provide that member organizations wishing to trade on the Exchange's Disaster Recovery Facility would be responsible for having contingency plans for establishing connectivity to such facility and changing routing instructions for their order entry systems to send bids and offers in Exchange-traded securities to such facility. This proposed rule text is based on current Rule 49(b)(3), but references connectivity to the Exchange's Disaster Recovery Facility rather than connectivity to NYSE Arca.
As noted above, because the Exchange would no longer be designating NYSE Arca to act on behalf of and at the direction of the Exchange, the Exchange would not include the provisions of current Rule 49(a)(1) and (b) relating to such designation. The Exchange further proposes that the term “Emergency Condition” and related definition, described in current Rule 49(a)(1), (2), and (3)(A), would not be included in proposed Rule 49 because this language has been superseded by Regulation SCI Rule 1001(a)(2)(v).
In addition, the Exchange is not proposing to include the subject of current Rule 49(b)(2)(A) and (B) in proposed Rule 49. In the Exchange's proposed Disaster Recovery Facility, the Exchange would be reporting all quotes and trades to the SIP as quotes and trades of the Exchange. In addition, the Exchange would be disseminating regulatory messages for its listed securities, including notifications of a regulatory halt and resumption of trading thereafter, trading pause and resumption of trading thereafter, and Short Sale Price Test trigger and lifting thereafter. Accordingly, NYSE Arca
Finally, the Exchange does not propose to retain the language in current Rule 49(c)(1), regarding notification requirements to the Commission as these have also been superseded by the notification requirements in Regulation SCI.
As discussed above, proposed Rule 49(b)(N) would include all the text of current Rule 431, with non-substantive differences to update sub-paragraph numbering and rule paragraph cross references and to reference member organizations. The Exchange proposes to designate this paragraph of proposed Rule 49(b)(N) with an “N” to distinguish it from current Rule 49(b), as both would be operative at the same time.
As discussed above in footnote 3, paragraph (a) of proposed Rule 49 would not be operative until the Exchange has an opportunity to test it with Exchange member organizations. The Exchange does not anticipate that the DR Facility will be available for testing in production until late in the fourth quarter of 2016. The Exchange will file a separate proposed rule change to establish the operative date of paragraph (a) of proposed Rule 49, delete current “Rule 49—Equities. Emergency Powers,” delete the preamble to proposed Rule 49, and delete the “N” designation to proposed Rule 49(b). The operative date established in such separate proposed rule change will also be announced via Trader Update. The proposed changes to Rule 49(b)(N), 51, and Rule 431 will be operative on approval of this proposed rule change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
More specifically, the Exchange believes that the proposed rule change would remove impediments to and perfect the mechanism of a free and open market and a national market system because under the proposed disaster recovery plan, the Exchange would maintain its own facility within the Disaster Recovery Facility that would disseminate to the SIP all quote and trade information, including opening, reopening, and closing auction information and intra-day quotes and trades, as well as regulatory messages, as Exchange messages.
The Exchange further believes that the proposed rule change to vest the authority to determine to trade securities on the Exchange's Disaster Recovery Facility pursuant to Rule 49 with the CEO, as provided for in proposed Rule 51(b)(v), would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would consolidate in a single rule the individual with authority to take specified actions. This proposed rule change would also streamline the Exchange's rules and procedures by providing for consistent authority of who may act when there is a loss or interruption of facilities utilized by the Exchange.
The Exchange also believes that, because the Exchange is now subject to the requirements of Regulation SCI, certain elements of current Rule 49 have been superseded, and therefore it would remove impediments to and perfect the mechanism of a free and open market and a national market system for proposed Rule 49(a) not to include specified provisions of the current rule. Specifically, the Exchange does not believe that proposed Rule 49(a) needs to be limited to what is currently defined as an “Emergency Condition” or be invoked for only ten days because the proposed rule would be invoked as part of a robust business continuity and disaster recovery plan in the event of a wide-scale disruption, as required by Rule 1001(a)(2)(v) of Regulation SCI.
Finally, the Exchange believes that moving the text of current Rule 431 relating to equity member organizations to proposed Rule 49(b)(N), amending Rule 431 to pertain only to ATP Holders, and renaming Rule 49 as “Exchange Business Continuity and Disaster Recovery Plans and Mandatory Testing,” would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would consolidate into a single rule related content,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is designed to facilitate trading in Exchange-listed securities on its Disaster Recovery Facility. As such, the Exchange believes that the proposed rule change would promote competition for the benefit of market participants and investors generally because it provides transparency in terms of which rules would govern trading in Exchange-traded securities if they trade on the Exchange's Disaster Recovery Facility.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend NYSE Rule 49 (Emergency Powers) by (1) replacing the text of current Rule 49 with the Exchange's proposed disaster recovery plans; and (2) moving the text of current Rule 438 (Exchange Backup Systems and Mandatory Testing) to Rule 49. This Amendment No. 1 supersedes the original filing in its entirety. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 49, which addresses the Exchange's emergency powers, by (1) replacing the text of current Rule 49 with the Exchange's proposed disaster recovery plans; and (2) moving the text of current Rule 438 (Exchange Backup Systems and Mandatory Testing) to Rule 49 with no substantive changes.
The Exchange proposes to amend Rule 49 in two ways. First, the Exchange proposes to replace the current disaster recovery plan, pursuant to which NYSE Arca, Inc. (“NYSE Arca”), the Exchange's affiliate, acts on behalf of and at the direction of the Exchange for auctions and specified regulatory messages in Exchange-listed securities, with a new disaster recovery plan that the Exchange would implement if the Exchange's primary data center is impaired. Under the proposed disaster recovery plan, the Exchange would no longer rely on NYSE Arca to act on its behalf. Rather, the Exchange would operate as a fully electronic exchange under its own trading rules and would maintain its own order book in its
Second, the Exchange proposes to move text from Rule 438 governing Exchange Backup Systems and Mandatory Testing, to proposed Rule 49(b)(N) with only non-substantive changes to update sub-paragraph numbering and cross references. Because Rule 438 relates to mandatory testing of the Exchange's disaster recovery facility, as required by Rule 1004 of Regulation SCI,
In 2009, the Exchange adopted Rule 49 to provide the Exchange with the authority to declare an Emergency Condition with respect to trading on or through the systems and facilities of the Exchange and to act as necessary in the public interest and for the protection of investors.
In November 2013, the Securities and Exchange Commission (“Commission”) approved amendments to Rule 49 that were designed to more effectively delineate the SRO functions of the Exchange and NYSE Arca during an Emergency Condition, reflect the operational preferences of the industry, and reflect the structure of member organization connectivity to and system coding for exchange systems.
Under current Rule 49, if the Exchange declares an Emergency Condition, the Exchange will halt all trading on the Exchange's systems and facilities and purge any unexecuted orders from the Exchange's own systems and facilities as soon as practicable following declaration of the Emergency Condition.
In addition, bids and offers for Exchange-listed securities entered on or through the systems and facilities of NYSE Arca during the Emergency Condition will be reported to the Consolidated Quotation system as bids and offers of NYSE Arca, except that the opening quote will be reported to the Consolidated Quotation System as a bid and/or offer of both the Exchange and NYSE Arca and any re-opening quote will be reported to the Consolidated Quotation System as a bid and/or offer of the Exchange only. Bids and offers for Exchange-listed securities executed on or through the systems and facilities of NYSE Arca during the Emergency Condition will be reported to the Consolidated Tape as executions of NYSE Arca, except for executions in the opening, re-opening, or closing transactions, which will be reported as Exchange executions and Exchange volume only.
Since adopting Rule 49, the Exchange has amended its rules to provide for Exchange-facilitated procedures for
Proposed Rule 49(a) would govern the Exchange's Disaster Recovery Facility. As proposed, Rule 49(a)(1) would provide that, as part of its business continuity and disaster recovery plans, the Exchange maintains a “Disaster Recovery Facility,” which is a secondary data center located in a geographically diverse location, as required by Regulation SCI.
Proposed Rule 49(a)(2) would specify the procedures that the Exchange would follow if the Exchange determines under Rule 51 to trade Exchange-traded securities on its Disaster Recovery Facility. Currently, Rule 49(a)(1) provides that a qualified Exchange officer shall have the authority to declare an Emergency Condition and current Rule 49(a)(3)(B) defines the term “qualified Exchange officer” to mean the ICE Chief Executive Officer or his or her designee, or the Chief Regulatory Officer of the Exchange or his or her designee. The rule further provides that in the event that none of these individuals is able to act due to incapacitation, the most senior surviving officer of ICE or the Exchange shall be a “qualified Exchange officer” for purposes of Rule 49.
Rather than specifying separately in Rule 49 who can act under that rule, the Exchange proposes to include in Rule 51 the authority to determine whether to use the Exchange's Disaster Recovery Facility. Rule 51(b) currently provides that, except as may be otherwise determined by the Exchange Board of Directors, the Chief Executive Officer (“CEO”) of the Exchange shall have the power to: (i) Halt or suspend trading in some or all securities trading on the Exchange; (ii) extend the hours for the transaction of business on the Exchange; (iii) close some or all Exchange facilities; or (iv) determine the duration of any halt, suspension or closing undertaken under this Rule. Rule 51(c) specifies the circumstances under which the CEO may take these actions, which includes a loss or interruption of facilities utilized by the Exchange.
The Exchange believes that the authority to determine to trade Exchange-traded securities in its Disaster Recovery Facility should similarly be vested with the CEO of the Exchange. Specifically, the CEO may already take the above-specified actions under Rule 51(b) if there is a loss or interruption of facilities utilized by the Exchange. The Exchange believes that a loss or interruption of the Exchange's primary data center is an event contemplated in Rule 51(c), and therefore the authority to take an action based on that event, whether suspending trading or determining to use the Disaster Recovery Facility, should be determined by the same person. Accordingly, the Exchange proposes to add proposed Rule 51(b)(v) to specify that the CEO of the Exchange may determine to trade securities on the Exchange's Disaster Recovery Facility pursuant to Rule 49.
The Exchange also proposes non-substantive amendments to Rule 51(b) to provide that the CEO “may take any of the following actions” rather than to provide that the CEO “shall have the power to.” The Exchange believes the proposed amendment makes clear that the CEO may invoke one or more of the actions specified in Rule 51(b)(i)-(v). For the same reason, the Exchange proposes to make a conforming amendment to Rule 51(c) to specify that the CEO shall take
The Exchange proposes that the following would apply if the Exchange determines under Rule 51 to trade Exchange-traded securities on its Disaster Recovery Facility:
• Proposed Rule 49(a)(2)(A) would provide that the 11 Wall Street facilities would not be available for trading if the Exchange is operating from its Disaster Recovery Facility. Because the trading systems in the Exchange's Disaster Recovery Facility would not have connectivity to DMM and Floor broker trading systems, the Exchange would operate as a fully electronic exchange when operating out of its Disaster Recovery Facility, even if 11 Wall Street facilities were not impacted.
• Proposed Rule 49(a)(2)(B) would provide that opening and reopening auctions would be subject to Rule 123D(a)(2)-(6) and closing auctions would be subject to Supplementary Material .10 to Rule 123C. Because there would be no Trading Floor or DMM connectivity, the Exchange proposes that, when operating out of its Disaster Recovery Facility, the Exchange would facilitate all openings, reopenings, and closings, as provided for in the enumerated rules. As noted above, this is the Exchange's current business continuity plan if the 11 Wall Street facilities were unavailable, but the Exchange could continue to operate out of its primary data center.
• Proposed Rule 49(a)(2)(C) would provide that any unexecuted orders entered into Exchange systems before trading on the Disaster Recovery Facility begins would be deemed cancelled and would be purged from Exchange systems. This proposed rule text is based on current Rule 49(b)(1)(B), which provides that when an Emergency Condition is declared, the Exchange will purge any unexecuted orders from the Exchange's own systems and facilities as soon as practicable following declaration of the Emergency Condition. The Exchange proposes to modify this text in proposed Rule 49(a)(2)(C) to make clear that any unexecuted orders entered into Exchange systems before trading on the Disaster Recovery Facility begins would be deemed cancelled because depending on the scope of the disruption, the Exchange may not be able to transmit cancellation messages for unexecuted orders.
• Proposed Rule 49(a)(2)(D) would provide that member organizations registered as DMMs would not be subject to any DMM obligations or benefits under Exchange rules while securities trade on the Disaster Recovery Facility.
Proposed Rule 49(a)(3) would provide that member organizations wishing to trade on the Exchange's Disaster Recovery Facility would be responsible for having contingency plans for establishing connectivity to such facility and changing routing instructions for their order entry systems to send bids and offers in Exchange-traded securities to such facility. This proposed rule text is based on current Rule 49(b)(3), but references connectivity to the Exchange's Disaster Recovery Facility rather than connectivity to NYSE Arca.
As noted above, because the Exchange would no longer be designating NYSE Arca to act on behalf of and at the direction of the Exchange, the Exchange would not include the provisions of current Rule 49(a)(1) and (b) relating to such designation. The Exchange further proposes that the term “Emergency Condition” and related definition, described in current Rule 49(a)(1), (2), and (3)(A), would not be included in proposed Rule 49 because this language has been superseded by Regulation SCI Rule 1001(a)(2)(v).
In addition, the Exchange is not proposing to include the subject of current Rule 49(b)(2)(A) and (B) in proposed Rule 49. In the Exchange's proposed Disaster Recovery Facility, the Exchange would be reporting all quotes and trades to the SIP as quotes and trades of the Exchange. In addition, the Exchange would be disseminating regulatory messages for its listed securities, including notifications of a regulatory halt and resumption of trading thereafter, trading pause and resumption of trading thereafter, and Short Sale Price Test trigger and lifting thereafter. Accordingly, NYSE Arca would not be disseminating this information on behalf of the Exchange in the event it determines to trade Exchange-traded securities on its Disaster Recovery Facility.
Finally, the Exchange does not propose to retain the language in current Rule 49(c)(1), regarding notification requirements to the Commission as these have also been superseded by the notification requirements in Regulation SCI.
As discussed above, proposed Rule 49(b)(N) would include all the text of current Rule 438, with non-substantive differences to update sub-paragraph numbering and rule paragraph cross references. The Exchange proposes to designate this paragraph of proposed Rule 49(b)(N) with an “N” to distinguish it from current Rule 49(b), as both would be operative at the same time.
As discussed above in footnote 3, paragraph (a) of proposed Rule 49(a) would not be operative until the Exchange has an opportunity to test it with Exchange member organizations. The Exchange does not anticipate that the DR Facility will be available for testing in production until late in the fourth quarter of 2016. The Exchange will file a separate proposed rule change to establish the operative date of paragraph (a) of proposed Rule 49, delete current “Rule 49. Emergency Powers,” delete the preamble to proposed Rule 49, and delete the “N” designation to proposed Rule 49(b). The operative date established in such separate proposed rule change will also be announced via Trader Update. The proposed changes to Rule 49(b)(N), 51, and Rule 438 will be operative on approval of this proposed rule change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
More specifically, the Exchange believes that the proposed rule change would remove impediments to and perfect the mechanism of a free and open market and a national market system because under the proposed disaster recovery plan, the Exchange would maintain its own facility within the Disaster Recovery Facility that would disseminate to the SIP all quote and trade information, including opening, reopening, and closing auction information and intra-day quotes and trades, as well as regulatory messages, as Exchange messages.
The Exchange further believes that the proposed rule change to vest the authority to determine to trade securities on the Exchange's Disaster Recovery Facility pursuant to Rule 49 with the CEO, as provided for in proposed Rule 51(b)(v), would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would consolidate in a single rule the individual with authority to take specified actions. This proposed rule change would also streamline the Exchange's rules and procedures by providing for consistent authority of who may act when there is a loss or interruption of facilities utilized by the Exchange.
The Exchange also believes that, because the Exchange is now subject to the requirements of Regulation SCI, certain elements of current Rule 49 have been superseded, and therefore it would remove impediments to and perfect the mechanism of a free and open market and a national market system for proposed Rule 49(a) not to include specified provisions of the current rule.
Finally, the Exchange believes that moving the text of current Rule 438 to proposed Rule 49(b)(N), and renaming Rule 49 as “Exchange Business Continuity and Disaster Recovery Plans and Mandatory Testing,” would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would consolidate into a single rule related content,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is designed to facilitate trading in Exchange-listed securities on its Disaster Recovery Facility. As such, the Exchange believes that the proposed rule change would promote competition for the benefit of market participants and investors generally because it provides transparency in Exchange rules of which rules would govern trading in Exchange-traded securities if they trade on the Exchange's Disaster Recovery Facility.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to to amend the NYSE Arca Options Fee Schedule. 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,
The purpose of this filing is to amend the Fee Schedule effective August 1, 2016. Specifically, the Exchange proposes to modify the qualification for Tier C of Customer and Professional Customer Posting Credit Tiers in Non-Penny Pilot Issues (the “Posting Credit Tiers”), as described below.
The Customer Posting Credit Tiers consists of a Base Tier and Tiers A, B and C, which provide for specified credits if specified volume thresholds have been met.
The Exchange is proposing to modify the qualification for Tier C by maintaining the requirement of at least 1.50% of TCADV from Customer and Professional Customer Posted Orders in all Issues, but reducing the portion of TCADV from Customer and Professional Customer Posted Orders in non-Penny Pilot Issues from 0.40% to 0.30%. The Exchange believes that reducing the required portion of posted orders in non-Penny Pilot issues while maintaining the overall volume threshold to qualify for Tier C would make the Tier (and related credit) more achievable given that the vast majority of options issues traded on the Exchange are in Penny Pilot Issues. The Exchange believes that the modification to make Tier C more achievable would provide additional incentive to OTPs to direct Customer (and Professional Customer) order flow to the Exchange, which benefits all market participants through increased liquidity and enhanced price discovery.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed modification to Tier C is reasonable, equitable, and not unfairly discriminatory because it would be available to all OTPs that execute posted electronic Customer (and Professional Customer) orders on the Exchange on an equal and non-discriminatory basis. The Exchange believes that modifying Tier C to reduce the portion of posted orders in non-Penny Pilot issues required to qualify for the Tier is equitable and not unfairly discriminatory because the change would enable more OTPs to qualify for the credit, which in turn, could reduce OTPs overall transaction costs on the Exchange. Moreover, the Exchange believes the proposed modifications would provide additional incentives to OTPs to direct Customer (and Professional Customer) order flow to the Exchange, which benefits all market participants through increased liquidity and enhanced price discovery.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
Office of Small and Disadvantaged Business Utilization (OSDBU), Office of the Secretary of Transportation (OST), Department of Transportation (DOT).
Notice of funding availability for the Great Lakes Region SBTRC.
The Department of Transportation (DOT), Office of the Secretary (OST), Office of Small and Disadvantaged Business Utilization (OSDBU) announces the opportunity for business centered community-based organizations, transportation-related trade associations, colleges and universities, community colleges, or chambers of commerce, registered with the Internal Revenue Service as 501 C(6) or 501 C(3) tax-exempt organizations, to compete for participation in OSDBU's Small Business Transportation Resource Center (SBTRC) program in the Great Lakes Region (Illinois, Indiana, Michigan, Ohio, and Wisconsin).
Complete Proposals must be received on or September 16, 2016, 6:00 p.m. Eastern Standard Time (EST). Proposals received after the deadline will be considered non-responsive and will not be reviewed.
Applications must be electronically submitted through
For further information concerning this notice, contact Ms. Steronica Mattocks, Program Analyst, U.S. Department of Transportation, Office of Small and Disadvantaged Business Utilization, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: (202) 366-0658. Email:
OSDBU will enter into Cooperative Agreements with these organizations to provide outreach to the small business community in their designated region and provide financial and technical assistance, business training programs, business assessment, management training, counseling, marketing and outreach, and the dissemination of information, to encourage and assist small businesses to become better prepared to compete for, obtain, and manage DOT funded transportation-related contracts and subcontracts at the federal, state and local levels. Throughout this notice, the term “small business” will refer to: 8(a), small disadvantaged businesses (SDB), disadvantaged business enterprises (DBE), women owned small businesses (WOSB), HubZone, service disabled veteran owned businesses (SDVOB), and veteran owned small businesses (VOSB). Throughout this notice, “transportation-related” is defined as the maintenance, rehabilitation, restructuring, improvement, or revitalization of any of the nation's modes of transportation.
The national SBTRC program utilizes Cooperative Agreements with chambers of commerce, trade associations, educational institutions and business-centered community based organizations to establish SBTRCs to provide business training, technical assistance and information to DOT grantees and recipients, prime contractors and subcontractors. In order to be effective and serve their target audience, the SBTRCs must be active in the local transportation community in order to identify and communicate opportunities and provide the required technical assistance. SBTRCs must already have, or demonstrate the ability to, establish working relationships with the state and local transportation agencies and technical assistance agencies (
Effective outreach is critical to the success of the SBTRC program. In order for their outreach efforts to be effective, SBTRCs must be familiar with DOT's Operating Administrations, its funding sources, and how funding is awarded to DOT grantees, recipients, contractors, subcontractors, and its financial assistance programs. SBTRCs must provide outreach to the regional small business transportation community to disseminate information and distribute DOT-published marketing materials, such as Short Term Lending Program (STLP) Information, Bonding Education Program (BEP) information, SBTRC brochures and literature, DOT Procurement Forecasts; Contracting with DOT booklets, Women and Girls in Transportation Initiative (WITI) information, and any other materials or resources that DOT or OSDBU may develop for this purpose. To maximize outreach, the SBTRC may be called upon to participate in regional and national conferences and seminars. Quantities of DOT publications for on-hand inventory and dissemination at conferences and seminars will be available upon request from the OSDBU office.
The DOT established OSDBU in accordance with Public Law 95-507, an amendment to the Small Business Act and the Small Business Investment Act of 1958. The mission of OSDBU at DOT is to ensure that the small and disadvantaged business policies and goals of the Secretary of Transportation are developed and implemented in a fair, efficient and effective manner to serve small and disadvantaged businesses throughout the country. The OSDBU also administers the provisions of Title 49, Section 332, the Minority Resource Center (MRC) which includes the duties of advocacy, outreach and financial services on behalf of small and disadvantaged business and those certified under 49 CFR parts 23 and 26 as Disadvantaged Business Enterprises (SBE) and the development of programs to encourage, stimulate, promote and assist small businesses to become better prepared to compete for, obtain and manage transportation-related contracts and subcontracts.
The Regional Assistance Division of OSDBU, through the SBTRC program, allows OSDBU to partner with local organizations to offer a comprehensive delivery system of business training, technical assistance and dissemination of information, targeted towards small business transportation enterprises in their regions. The SBTRCs are established and funded through Cooperative Agreements between eligible applicants and OSDBU. The SBTRCs function as regional offices of OSDBU and fully execute the mission of the OSDBU nationally.
OSDBU enters into Cooperative Agreements with recipients to establish and fund a regional SBTRC. Under the Cooperative Agreement OSDBU will be “substantially involved” with the overall operations of the SBTRC. This involvement includes directing SBTRC staff to travel and represent OSDBU on panels and events. OSDBU will make one award under this announcement. Award ceiling for this announcement is $232,000. The recipient will begin performing on the award on October 1, 2016 and the period of performance (POP) will be October 1, 2016 to September 30, 2017. This is a 1 year grant with an option to renew for 2 additional years at the discretion of U.S. DOT.
Cooperative agreement awards will be distributed to the region(s) as follows:
Cooperative agreement awards by region are based upon an analysis of DBEs, Certified Small Businesses, and US DOT transportation dollars in each region.
It is OSDBU's intent to maximize the benefits received by the small business transportation community through the SBTRC. Funding will reimburse an on-site Project Director for
To be eligible, an organization must be an established, nonprofit, community-based organization, transportation-related trade association, chamber of commerce, college or university, community college, and any other qualifying transportation-related non-profit organization which has the documented experience and capacity necessary to successfully operate and administer a coordinated delivery system that provides access for small businesses to prepare and compete for transportation-related contracts.
In addition, to be eligible, the applicant organization must:
(a) Be an established 501 C (3) or 501 C (6) tax-exempt organization and provide documentation as verification. No application will be accepted without proof of tax-exempt status;
(b) Have at least one year of documented and continuous experience prior to the date of application in providing advocacy, outreach, and technical assistance to small businesses within the region in which proposed services will be provided. Prior performance providing services to the transportation community is preferable, but not required; and
(c) Have an office physically located within the proposed city in the designated headquarters state in the
Conduct an assessment of small businesses in the SBTRC region to determine their training and technical assistance needs, and use information that is available at no cost to structure programs and services that will enable small businesses to become better prepared to compete for and receive transportation-related contract awards.
Utilize OSDBU's Intake Form to document each small business assisted by the SBTRC and type of service(s) provided. A complete list of businesses that have filled out the form shall be submitted as part of the SBTRC report, submitted via email to the Regional Assistance Division on a regular basis (using the SBTRC report). This report will detail SBTRC activities and performance results. The data provided must be supported by the narrative (if asked).
Ensure that an array of information is made available for distribution to the small business transportation community that is designed to inform and educate the community on DOT/OSDBU services and opportunities. Coordinate efforts with OSDBU in order to maintain an on-hand inventory of DOT/OSDBU informational materials for general dissemination and for distribution at transportation-related conferences and other events.
Collaborate with agencies, such as State, Regional, and Local Transportation Government Agencies, SBA, U.S. Department of Commerce's Minority Business Development Centers (MBDCs), Service Corps of Retired Executives (SCORE), Procurement Technical Assistance Centers (PTACs), and Small Business Development Centers (SBDCs), to offer a broad range of counseling services to transportation-related small business enterprises. Create a technical assistance plan that will provide each counseled participant with the knowledge and skills necessary to improve the management of their own small business to expand their transportation-related contracts and subcontracts portfolio.
Provide a minimum of 20 hours of individual or group counseling sessions to small businesses per month. This counseling includes in-person meetings or over the phone, and does not include any time taken to do email correspondence.
Establish a Regional Planning Committee consisting of at least 10 members that includes representatives from the regional community and federal, state, and local agencies. The highway, airport, and transit authorities for the SBTRCs headquarters state must have representation on the planning committee. The committee shall be established no later than 60 days after the execution of the Cooperative Agreement between the OSDBU and the selected SBTRC.
Provide a forum for the federal, state, and local agencies to disseminate information about upcoming DOT procurements and SBTRC activities.
Hold either monthly or quarterly meetings at a time and place agreed upon by SBTRC and planning committee members (conference calls and/or video conferences are acceptable).
Use the initial session hosted by the SBTRC to explain the mission of the committee and identify roles of staff and the members of the group.
Responsibility for the agenda and direction of the Planning Committee should be handled by the SBTRC Project Director or his/her designee.
Utilize the services of the System for Award Management (SAM) and other sources to construct a database of regional small businesses that currently are or may in the future participate in DOT direct and DOT funded transportation related contracts, and make this database available to OSDBU upon request.
Utilize the database of regional transportation-related small businesses to match opportunities identified through the planning committee forum, FedBiz Opps (a web-based system for posting solicitations and other Federal procurement-related documents on the Internet), and other sources to eligible small businesses and inform the small business community about those opportunities.
Develop a “targeted” database of firms (100-150) that have the capacity and capabilities, and are ready, willing and able to participate in DOT contracts and subcontracts immediately. This control group will receive ample resources from the SBTRC,
Identify regional, state and local conferences where a significant number of small businesses, with transportation related capabilities, are expected to be in attendance. Maintain and submit a list of those events to the regional Assistance Division for review and posting on the OSDBU Web site on a regular basis. Clearly identify the events designated for SBTRC participation and include recommendations for OSDBU participation. This information can be submitted as part of the SBTRC report.
Conduct outreach and disseminate information to small businesses at regional transportation-related conferences, seminars, and workshops. In the event that the SBTRC is requested to participate in an event, the OSDBU will provide DOT materials, the OSDBU banner and other information that is deemed necessary for the event.
Submit a conference summary report within the “Events” section of the SBTRC Report. The conference summary report should summarize the activity, contacts made, outreach results, and recommendations for continued or discontinued participation in future similar events sponsored by that organization.
Upon request by OSDBU, coordinate efforts with DOT's grantees and recipients at the state and/or local levels to sponsor or cosponsor an OSDBU transportation related conference in the region (commonly referred to as “Small Business Summits”).
Participate in the SBTRC Monthly teleconference call, hosted by the OSDBU Regional Assistance Division.
Work with STLP participating banks and if not available, other institutions to deliver a minimum of five (5) seminars/workshops per year on the STLP, and/or other financial assistance programs, to the transportation-related small business community. Seminars/workshops must cover the entire STLP/loan process, form completion of STLP/loan applications and preparation of the loan package.
Provide direct support, technical support, and advocacy services to potential STLP applicants to increase the probability of STLP loan approval and generate a minimum of four (4) completed STLP applications per year.
Provide direct support, technical support, and advocacy services to Small and Disadvantaged Businesses interested in obtaining a loan from another type of Government Lending Program. Government Lending Programs include Federal, State, and Local level
Work with OSDBU, bonding industry partners, local small business transportation stakeholders, and local bond producers/agents in your region to deliver a minimum of two (2) complete Bonding Education Programs and secure 3% of the total DBE contract value for each transportation project. The BEP consists of the following components; (1) The stakeholder's meeting; (2) the educational workshops component; (3) the bond readiness component; and (4) follow-on assistance to BEP participants to provide technical and procurement assistance based on the prescriptive plan determined by the BEP. For each BEP event, work with the local bond producers/agents in your region and the disadvantaged business participants to deliver a minimum of ten (10) disadvantaged business participants in the BEP with either access to bonding or an increase in the bonding capacity. The programs will be funded separately and in addition to the amount listed in 1.3 of the solicitation.
Pursuant to
Each region will establish a Women in Transportation Advisory Committee. The committee will provide a forum to identify and provide workable solutions to barriers that women-owned businesses encounter in transportation-related careers. The committee will have 5 members (including the SBTRC Project Director) with a 1 year membership. Meetings will be conducted on a quarterly basis at an agreeable place and time.
(a) Provide consultation and technical assistance in planning, implementing, and evaluating activities under this announcement.
(b) Provide orientation and training to the applicant organization.
(c) Monitor SBTRC activities, cooperative agreement compliance, and overall SBTRC performance.
(d) Assist SBTRC to develop or strengthen its relationships with federal, state, and local transportation authorities, other technical assistance organizations, and DOT grantees.
(e) Facilitate the exchange and transfer of successful program activities and information among all SBTRC regions.
(f) Provide the SBTRC with DOT/OSDBU materials and other relevant transportation related information for dissemination.
(g) Maintain effective communication with the SBTRC and inform them of transportation news and contracting opportunities to share with small businesses in their region.
(h) Provide all required forms to be used by the SBTRC for reporting purposes under the program.
(i) Perform an annual performance evaluation of the SBTRC. Satisfactory performance is a condition of continued participation of the organization as an SBTRC and execution of all option years.
Each proposal must be submitted to
Any eligible organization, as defined in Section C of this announcement, will submit only one proposal per region for consideration by OSDBU. Applications must be double spaced, and printed in a font size not smaller than 12 points. Applications will not exceed 35 single-sided pages, not including any requested attachments. All pages should be numbered at the top of each page. All documentation, attachments, or other information pertinent to the application must be included in a single submission. Proposal packages must be submitted electronically to
(c) Each applicant must be registered in System for Award Management (SAM) and provide their unique Entity Identifier with the proposal.
(d) Proposals must be received in
OSDBU will award the cooperative agreement on a best value basis, using the following criteria to rate and rank applications:
Applications will be evaluated using a point system (maximum number of points = 100);
The applicant must describe their strategy to achieve the overall mission of the SBTRC as described in this solicitation and service the small business community in their entire geographic regional area. The applicant must also describe how the specific activities outlined in Section C will be implemented and executed in the organization's regional area. OSDBU will consider the extent to which the proposed objectives are specific, measurable, time-specific, and consistent with OSDBU goals and the applicant organization's overall mission. OSDBU will give priority consideration to applicants that demonstrate innovation and creativity in their approach to assist small businesses to become successful transportation contractors and increase their ability to access DOT contracting opportunities and financial assistance programs. Applicants must also submit the estimated direct costs, other than labor, to execute their proposed strategy. OSDBU will consider the quality of the applicant's plan for conducting program activities and the likelihood that the proposed methods will be successful in achieving proposed objectives at the proposed cost.
The applicant must describe their established relationships within their geographic region and demonstrate their ability to coordinate and establish
The applicant must demonstrate that they have the organizational capability to meet the program requirements set forth in Section C. The applicant organization must have sufficient resources and past performance experience to successfully provide outreach to transportation-related small businesses in their geographical area and carry out the mission of the SBTRC. In rating this factor, OSDBU will consider the extent to which the applicant's organization has recent, relevant and successful experience in advocating for and addressing the needs of small businesses. Applicants will be given points for demonstrated past transportation-related performance. The applicant must also describe technical and administrative resources it plans to use in achieving proposed objectives. In their description, the applicant must describe their facilities, computer and technical facilities, ability to tap into volunteer staff time, and a plan for sufficient matching alternative financial resources to fund the general and administrative costs of the SBTRC. The applicant must also describe their administrative and financial staff. It will be the responsibility of the successful candidate to not only provide the services outlined herein to small business in the transportation industry, but to also successfully manage and maintain their internal financial, payment, and invoicing process with their financial management offices. OSDBU will place an emphasis on capabilities of the applicant's financial management staff. Additionally, a site visit will be required prior to award for those candidates that are being strongly considered. A member of the OSDBU team will contact those candidates to schedule the site visits prior to the award of the agreement.
The applicant organization must provide a list of proposed personnel for the project, with salaries, fringe benefit burden factors, education levels and previous experience clearly delineated. The applicant's project team must be well-qualified, knowledgeable, and able to effectively serve the diverse and broad range of small businesses in their geographical region. The Executive Director and the Project Director shall be deemed key personnel. Detailed resumes must be submitted for all proposed key personnel and outside consultants and subcontractors. Proposed key personnel must have detailed demonstrated experience providing services similar in scope and nature to the proposed effort. The proposed Project Director will serve as the responsible individual for the program. 100% of the Project Director's time must be dedicated to the SBTRC. Both the Executive and Project Directors must be located on-site. In this element, OSDBU will consider the extent to which the applicant's proposed Staffing Plan; (a) clearly meets the education and experience requirements to accomplish the objectives of the cooperative agreement; (b) delineates staff responsibilities and accountability for all work required and; (c) presents a clear and feasible ability to execute the applicant's proposed approach and strategy.
Applicants must submit the total proposed cost of establishing and administering the SBTRC in the applicant's geographical region for a 12 month period, inclusive of costs funded through alternative matching resources. The applicant's budget must be adequate to support the proposed strategy and costs must be reasonable in relation to project objectives. The portion of the submitted budget funded by OSDBU cannot exceed the ceiling outlined in Section B. Applicants are encouraged to provide in-kind costs and other innovative cost approaches.
A review panel will score each application based upon the evaluation criteria listed above. Points will be given for each evaluation criteria category, not to exceed the maximum number of points allowed for each category. Proposals which are deemed non-responsive, do not meet the established criteria, or incomplete at the time of submission will be disqualified.
OSDBU will perform a responsibility determination of the prospective awardee in the region, which will include a site visit, before awarding the cooperative agreement.
Applicants must submit signed statements by key personnel and all organization principals indicating that they, or members of their immediate funded transportation project, nor any relationships with local or state transportation agencies that may have the appearance of a conflict of interest.
A team of people will evaluate the proposals. Those proposals meeting the mandatory criteria will be assessed based on the above mentioned criteria. The proposals demonstrating the organization's capacity to fully execute the requirements of this grant will be considered. The proposal receiving the highest overall score will be awarded.
Following the evaluation outlined in Section E, the OSDBU will announce the awarded applicant with a written Notice of Funding Award. The NOFA will also include the cooperative agreement for signature.
All awards will be administered pursuant to the Uniform Administrative Cost Principles and Audit Requirements for Federal Awards found in
For further information this notice please contact the OSDBU program staff via email at
All information submitted as part of or in support of any application shall use publicly available data or data that can be made public and methodologies that are accepted by industry practice and standards, to the extent possible. If the application includes information you consider to be a trade secret or confidential commercial or financial information, the applicant should do the following: (1) Note on the front cover that the submission “Contains Confidential Business Information (CBI)”; (2) mark each affected page “CBI”; and (3) highlight or otherwise denote the CBI portions. DOT protects such information from disclosure to the extent allowed under applicable law. In the event DOT received a Freedom of Information Act (FOIA) request for the information, DOT will follow the procedures described in its FOIA regulation as
Office of Small and Disadvantaged Business Utilization (OSDBU), Office of the Secretary of Transportation (OST), Department of Transportation (DOT).
Notice of funding availability for the Gulf Region SBTRC.
The Department of Transportation (DOT), Office of the Secretary (OST), Office of Small and Disadvantaged Business Utilization (OSDBU) announces the opportunity for business centered community-based organizations, transportation-related trade associations, colleges and universities, community colleges, or chambers of commerce, registered with the Internal Revenue Service as 501 C(6) or 501 C(3) tax-exempt organizations, to compete for participation in OSDBU's Small Business Transportation Resource Center (SBTRC) program in the Gulf Region (Louisiana, New Mexico, Oklahoma, and Texas).
Complete Proposals must be received on or September 16, 2016, 6:00 p.m. Eastern Standard Time (EST). Proposals received after the deadline will be considered non-responsive and will not be reviewed.
Applications must be electronically submitted through
For further information concerning this notice, contact Ms. Steronica Mattocks, U.S. Department of Transportation, Office of Small and Disadvantaged Business Utilization, 1200 New Jersey Avenue SE., Washington, DC, 20590. Telephone: (202) 366-0658. Email: [email protected].
OSDBU will enter into Cooperative Agreements with these organizations to provide outreach to the small business community in their designated region and provide financial and technical assistance, business training programs, business assessment, management training, counseling, marketing and outreach, and the dissemination of information, to encourage and assist small businesses to become better prepared to compete for, obtain, and manage DOT funded transportation-related contracts and subcontracts at the federal, state and local levels. Throughout this notice, the term “small business” will refer to: 8(a), small disadvantaged businesses (SDB), disadvantaged business enterprises (DBE), women owned small businesses (WOSB), HubZone, service disabled veteran owned businesses (SDVOB), and veteran owned small businesses (VOSB). Throughout this notice, “transportation-related” is defined as the maintenance, rehabilitation, restructuring, improvement, or revitalization of any of the nation's modes of transportation.
The national SBTRC program utilizes Cooperative Agreements with chambers of commerce, trade associations, educational institutions and business-centered community based organizations to establish SBTRCs to provide business training, technical assistance and information to DOT grantees and recipients, prime contractors and subcontractors. In order to be effective and serve their target audience, the SBTRCs must be active in the local transportation community in order to identify and communicate opportunities and provide the required technical assistance. SBTRCs must already have, or demonstrate the ability to, establish working relationships with the state and local transportation agencies and technical assistance agencies (
Effective outreach is critical to the success of the SBTRC program. In order for their outreach efforts to be effective, SBTRCs must be familiar with DOT's Operating Administrations, its funding sources, and how funding is awarded to DOT grantees, recipients, contractors, subcontractors, and its financial assistance programs. SBTRCs must provide outreach to the regional small business transportation community to disseminate information and distribute DOT-published marketing materials, such as Short Term Lending Program (STLP) Information, Bonding Education Program (BEP) information, SBTRC brochures and literature, DOT Procurement Forecasts; Contracting with DOT booklets, Women and Girls in Transportation Initiative (WITI) information, and any other materials or resources that DOT or OSDBU may develop for this purpose. To maximize outreach, the SBTRC may be called upon to participate in regional and national conferences and seminars. Quantities of DOT publications for on-hand inventory and dissemination at conferences and seminars will be available upon request from the OSDBU office.
The DOT established OSDBU in accordance with Public Law 95-507, an amendment to the Small Business Act and the Small Business Investment Act of 1958. The mission of OSDBU at DOT is to ensure that the small and disadvantaged business policies and goals of the Secretary of Transportation are developed and implemented in a fair, efficient and effective manner to serve small and disadvantaged businesses throughout the country. The OSDBU also administers the provisions of Title 49, Section, 332, the Minority Resource Center (MRC) which includes the duties of advocacy, outreach and financial services on behalf of small and disadvantaged business and those certified under 49 CFR parts 23 and 26 as Disadvantaged Business Enterprises (SBE) and the development of programs to encourage, stimulate, promote and assist small businesses to become better prepared to compete for, obtain and manage transportation-related contracts and subcontracts.
The Regional Assistance Division of OSDBU, through the SBTRC program, allows OSDBU to partner with local organizations to offer a comprehensive delivery system of business training, technical assistance and dissemination of information, targeted towards small business transportation enterprises in their regions. The SBTRCs are established and funded through Cooperative Agreements between eligible applicants and OSDBU. The SBTRCs function as regional offices of OSDBU and fully execute the mission of the OSDBU nationally.
OSDBU enters into Cooperative Agreements with recipients to establish and fund a regional SBTRC. Under the Cooperative Agreement OSDBU will be “substantially involved” with the overall operations of the SBTRC. This involvement includes directing SBTRC staff to travel and represent OSDBU on panels and events. OSDBU will make one award under this announcement. Award ceiling for this announcement is $190,000. The recipient will begin performing on the award on October 1, 2016 and the period of performance (POP) will be October 1, 2016 to September 30, 2017. This is a 1 year grant with an option to renew for 2 additional years at the discretion of U.S. DOT.
Cooperative agreement awards will be distributed to the region(s) as follows:
Cooperative agreement awards by region are based upon an analysis of DBEs, Certified Small Businesses, and US DOT transportation dollars in each region.
It is OSDBU's intent to maximize the benefits received by the small business transportation community through the SBTRC. Funding will reimburse an on-site Project Director for
To be eligible, an organization must be an established, nonprofit, community-based organization, transportation-related trade association, chamber of commerce, college or university, community college, and any other qualifying transportation-related non-profit organization which has the documented experience and capacity necessary to successfully operate and administer a coordinated delivery system that provides access for small businesses to prepare and compete for transportation-related contracts.
In addition, to be eligible, the applicant organization must:
(a) Be an established 501 C (3) or 501 C (6) tax-exempt organization and provide documentation as verification. No application will be accepted without proof of tax-exempt status;
(b) Have at least one year of documented and continuous experience prior to the date of application in providing advocacy, outreach, and technical assistance to small businesses within the region in which proposed services will be provided. Prior performance providing services to the transportation community is preferable, but not required; and
(c) Have an office physically located within the proposed city in the designated headquarters state in the region for which they are submitting the proposal that is readily accessible to the public.
Conduct an assessment of small businesses in the SBTRC region to determine their training and technical assistance needs, and use information that is available at no cost to structure programs and services that will enable small businesses to become better prepared to compete for and receive transportation-related contract awards.
Utilize OSDBU's Intake Form to document each small business assisted by the SBTRC and type of service(s) provided. A complete list of businesses that have filled out the form shall be submitted as part of the SBTRC report, submitted via email to the Regional Assistance Division on a regular basis (using the SBTRC report). This report will detail SBTRC activities and performance results. The data provided must be supported by the narrative (if asked).
Ensure that an array of information is made available for distribution to the small business transportation community that is designed to inform and educate the community on DOT/OSDBU services and opportunities. Coordinate efforts with OSDBU in order to maintain an on-hand inventory of DOT/OSDBU informational materials for general dissemination and for distribution at transportation-related conferences and other events.
Collaborate with agencies, such as State, Regional, and Local Transportation Government Agencies, SBA, U.S. Department of Commerce's Minority Business Development Centers (MBDCs), Service Corps of Retired Executives (SCORE), Procurement Technical Assistance Centers (PTACs), and Small Business Development Centers (SBDCs), to offer a broad range of counseling services to transportation-related small business enterprises.
Create a technical assistance plan that will provide each counseled participant with the knowledge and skills necessary to improve the management of their own small business to expand their transportation-related contracts and subcontracts portfolio.
Provide a minimum of 20 hours of individual or group counseling sessions to small businesses per month. This counseling includes in-person meetings or over the phone, and does not include any time taken to do email correspondence.
Establish a Regional Planning Committee consisting of at least 10 members that includes representatives from the regional community and federal, state, and local agencies. The highway, airport, and transit authorities for the SBTRCs headquarters state must have representation on the planning committee. The committee shall be established no later than 60 days after the execution of the Cooperative Agreement between the OSDBU and the selected SBTRC.
Provide a forum for the federal, state, and local agencies to disseminate information about upcoming DOT procurements and SBTRC activities. Hold either monthly or quarterly meetings at a time and place agreed upon by SBTRC and planning committee members (conference calls and/or video conferences are acceptable).
Use the initial session hosted by the SBTRC to explain the mission of the committee and identify roles of staff and the members of the group. Responsibility for the agenda and direction of the Planning Committee should be handled by the SBTRC Project Director or his/her designee.
Utilize the services of the System for Award Management (SAM) and other sources to construct a database of regional small businesses that currently are or may in the future participate in DOT direct and DOT funded transportation related contracts, and make this database available to OSDBU upon request. Utilize the database of regional transportation-related small businesses to match opportunities identified through the planning committee forum, FedBiz Opps (a Web-based system for posting solicitations and other Federal procurement-related documents on the Internet), and other sources to eligible small businesses and inform the small business community about those opportunities.
Develop a “targeted” database of firms (100-150) that have the capacity and capabilities, and are ready, willing and able to participate in DOT contracts and subcontracts immediately. This control group will receive ample resources from the SBTRC,
Identify regional, state and local conferences where a significant number of small businesses, with transportation related capabilities, are expected to be in attendance. Maintain and submit a list of those events to the regional Assistance Division for review and posting on the OSDBU Web site on a regular basis. Clearly identify the events designated for SBTRC participation and include recommendations for OSDBU participation. This information can be submitted as part of the SBTRC report.
Conduct outreach and disseminate information to small businesses at regional transportation-related conferences, seminars, and workshops. In the event that the SBTRC is requested to participate in an event, the OSDBU will provide DOT materials, the OSDBU banner and other information that is deemed necessary for the event.
Submit a conference summary report within the “Events” section of the SBTRC Report. The conference summary report should summarize the activity, contacts made, outreach results, and recommendations for continued or discontinued participation in future similar events sponsored by that organization.
Upon request by OSDBU, coordinate efforts with DOT's grantees and recipients at the state and/or local levels to sponsor or cosponsor and OSDBU transportation related conference in the region (commonly referred to as “Small Business Summits”).
Participate in the SBTRC Monthly teleconference call, hosted by the OSDBU Regional Assistance Division.
Work with STLP participating banks and if not available, other institutions to deliver a minimum of five (5) seminars/workshops per year on the STLP, and/or other financial assistance programs, to the transportation-related small business community. Seminars/workshops must cover the entire STLP/loan process, form completion of STLP/loan applications and preparation of the loan package.
Provide direct support, technical support, and advocacy services to potential STLP applicants to increase the probability of STLP loan approval and generate a minimum of four (4) completed STLP applications per year. Provide direct support, technical support, and advocacy services to Small and Disadvantaged Businesses
Work with OSDBU, bonding industry partners, local small business transportation stakeholders, and local bond producers/agents in your region to deliver a minimum of two (2) complete Bonding Education Programs and secure 3% of the total DBE contract value for each transportation project. The BEP consists of the following components; (1) The stakeholder's meeting; (2) the educational workshops component; (3) the bond readiness component; and (4) follow-on assistance to BEP participants to provide technical and procurement assistance based on the prescriptive plan determined by the BEP. For each BEP event, work with the local bond producers/agents in your region and the disadvantaged business participants to deliver a minimum of ten (10) disadvantaged business participants in the BEP with either access to bonding or an increase in the bonding capacity. The programs will be funded separately and in addition to the amount listed in 1.3 of the solicitation.
Pursuant to
Each region will establish a Women in Transportation Advisory Committee. The committee will provide a forum to identify and provide workable solutions to barriers that women-owned businesses encounter in transportation-related careers. The committee will have 5 members (including the SBTRC Project Director) with a 1 year membership. Meetings will be conducted on a quarterly basis at an agreeable place and time.
(a) Provide consultation and technical assistance in planning, implementing, and evaluating activities under this announcement.
(b) Provide orientation and training to the applicant organization.
(c) Monitor SBTRC activities, cooperative agreement compliance, and overall SBTRC performance.
(d) Assist SBTRC to develop or strengthen its relationships with federal, state, and local transportation authorities, other technical assistance organizations, and DOT grantees.
(e) Facilitate the exchange and transfer of successful program activities and information among all SBTRC regions.
(f) Provide the SBTRC with DOT/OSDBU materials and other relevant transportation related information for dissemination.
(g) Maintain effective communication with the SBTRC and inform them of transportation news and contracting opportunities to share with small businesses in their region.
(h) Provide all required forms to be used by the SBTRC for reporting purposes under the program.
(i) Perform an annual performance evaluation of the SBTRC. Satisfactory performance is a condition of continued participation of the organization as an SBTRC and execution of all option years.
Each proposal must be submitted to
Any eligible organization, as defined in Section C of this announcement, will submit only one proposal per region for consideration by OSDBU. Applications must be double spaced, and printed in a font size not smaller than 12 points. Applications will not exceed 35 single-sided pages, not including any requested attachments. All pages should be numbered at the top of each page. All documentation, attachments, or other information pertinent to the application must be included in a single submission. Proposal packages must be submitted electronically to
(c) Each applicant must be registered in System for Award Management (SAM) and provide their unique Entity Identifier with the proposal.
(d) Proposals must be received in
OSDBU will award the cooperative agreement on a best value basis, using the following criteria to rate and rank applications:
Applications will be evaluated using a point system (maximum number of points = 100);
The applicant must describe their strategy to achieve the overall mission of the SBTRC as described in this solicitation and service the small business community in their entire geographic regional area. The applicant must also describe how the specific activities outlined in Section C will be implemented and executed in the organization's regional area. OSDBU will consider the extent to which the proposed objectives are specific, measurable, time-specific, and consistent with OSDBU goals and the applicant organization's overall mission. OSDBU will give priority consideration to applicants that demonstrate innovation and creativity in their approach to assist small businesses to become successful transportation contractors and increase their ability to access DOT contracting opportunities and financial assistance programs. Applicants must also submit the estimated direct costs, other than labor, to execute their proposed strategy. OSDBU will consider the quality of the applicant's plan for conducting program activities and the likelihood that the proposed methods will be successful in achieving proposed objectives at the proposed cost.
The applicant must describe their established relationships within their geographic region and demonstrate their ability to coordinate and establish effective networks with DOT grant recipients and local/regional technical assistance agencies to maximize resources. OSDBU will consider innovative aspects of the applicant's approach and strategy to build upon their existing relationships and establish networks with existing resources in their geographical area. The applicant should describe their strategy to obtain and collaboration on SBTRC from DOT grantees and recipients, transportation prime contractors and subcontractors, the SBA, U.S. Department of Commerce's Minority Business Development Centers (MBDCs), Service Corps of Retired Executives (SCORE), State DOTs, and State Highway supportive services contractors. In rating this factor, OSDBU will consider the extent to which the applicant demonstrates ability to multidimensional. The applicant must demonstrate that they have the ability to access a broad range of supportive services to effectively serve a broad range of transportation-related small businesses within their respective geographical region. Emphasis will also be placed on the extent to which the applicant identifies a clear outreach strategy related to the identified needs that can be successfully carried out within the period of this agreement and a plan for involving the Planning Committee in the execution of that strategy.
The applicant must demonstrate that they have the organizational capability to meet the program requirements set forth in Section C. The applicant organization must have sufficient resources and past performance experience to successfully provide outreach to transportation-related small businesses in their geographical area and carry out the mission of the SBTRC. In rating this factor, OSDBU will consider the extent to which the applicant's organization has recent, relevant and successful experience in advocating for and addressing the needs of small businesses. Applicants will be given points for demonstrated past transportation-related performance. The applicant must also describe technical and administrative resources it plans to use in achieving proposed objectives. In their description, the applicant must describe their facilities, computer and technical facilities, ability to tap into volunteer staff time, and a plan for sufficient matching alternative financial resources to fund the general and administrative costs of the SBTRC. The applicant must also describe their administrative and financial staff. It will be the responsibility of the successful candidate to not only provide the services outlined herein to small business in the transportation industry, but to also successfully manage and maintain their internal financial, payment, and invoicing process with their financial management offices. OSDBU will place an emphasis on capabilities of the applicant's financial management staff. Additionally, a site visit will be required prior to award for those candidates that are being strongly considered. A member of the OSDBU team will contact those candidates to schedule the site visits prior to the award of the agreement.
The applicant organization must provide a list of proposed personnel for the project, with salaries, fringe benefit burden factors, education levels and previous experience clearly delineated. The applicant's project team must be well-qualified, knowledgeable, and able to effectively serve the diverse and broad range of small businesses in their geographical region. The Executive Director and the Project Director shall be deemed key personnel. Detailed resumes must be submitted for all proposed key personnel and outside consultants and subcontractors. Proposed key personnel must have detailed demonstrated experience providing services similar in scope and nature to the proposed effort. The proposed Project Director will serve as the responsible individual for the program. 100% of the Project Director's time must be dedicated to the SBTRC. Both the Executive and Project Directors must be located on-site. In this element, OSDBU will consider the extent to which the applicant's proposed Staffing Plan; (a) clearly meets the education and experience requirements to accomplish the objectives of the cooperative agreement; (b) delineates staff responsibilities and accountability for all work required and; (c) presents a clear and feasible ability to execute the applicant's proposed approach and strategy.
Applicants must submit the total proposed cost of establishing and administering the SBTRC in the applicant's geographical region for a 12 month period, inclusive of costs funded through alternative matching resources. The applicant's budget must be adequate to support the proposed strategy and costs must be reasonable in relation to project objectives. The portion of the submitted budget funded by OSDBU cannot exceed the ceiling outlined in Section B. Applicants are encouraged to provide in-kind costs and other innovative cost approaches.
A review panel will score each application based upon the evaluation criteria listed above. Points will be given for each evaluation criteria category, not to exceed the maximum number of points allowed for each category. Proposals which are deemed non-responsive, do not meet the established criteria, or incomplete at the time of submission will be disqualified.
OSDBU will perform a responsibility determination of the prospective awardee in the region, which will include a site visit, before awarding the cooperative agreement.
Applicants must submit signed statements by key personnel and all organization principals indicating that they, or members of their immediate funded transportation project, nor any relationships with local or state transportation agencies that may have the appearance of a conflict of interest.
A team of people will evaluate the proposals. Those proposals meeting the mandatory criteria will be assessed based on the above mentioned criteria. The proposals demonstrating the organization's capacity to fully execute the requirements of this grant will be considered. The proposal receiving the highest overall score will be awarded.
Following the evaluation outlined in Section E, the OSDBU will announce the awarded applicant with a written Notice of Funding Award. The NOFA will also include the cooperative agreement for signature.
All awards will be administered pursuant to the Uniform Administrative Cost Principles and Audit Requirements for Federal Awards found in
Performance Reporting—The recipient of this cooperative agreement
Progress Reporting—The recipient for this cooperative agreement funding must submit quarterly progress reports and annual Federal Financial Report (SF-425) on the financial condition of the cooperative agreement and its progress, as well as an Annual Budget Review and Implementation Plan to monitor the use of Federal funds and ensure accountability and financial transparency in the program.
For further information this notice please contact the OSDBU program staff via email at
All information submitted as part of or in support of any application shall use publicly available data or data that can be made public and methodologies that are accepted by industry practice and standards, to the extent possible. If the application includes information you consider to be a trade secret or confidential commercial or financial information, the applicant should do the following: (1) Note on the front cover that the submission “Contains Confidential Business Information (CBI)”; (2) mark each affected page “CBI”; and (3) highlight or otherwise denote the CBI portions. DOT protects such information from disclosure to the extent allowed under applicable law. In the event DOT received a Freedom of Information Act (FOIA) request for the information, DOT will follow the procedures described in its FOIA regulation as
Department of Veterans Affairs.
Notice of Funding Availability (Grant Renewals).
The Department of Veterans Affairs (VA) is announcing the availability of funds under the Grants for Transportation of Veterans in Highly Rural Areas. This Notice of Funding Availability (Notice) contains information concerning the Grants for Transportation of Veterans in Highly Rural Areas program, grant renewal application process, and amount of funding available.
Darren Wallace, National Coordinator, Highly Rural Transportation Grants, Veterans Transportation Program, Member Services (10NF4), 2957 Clairmont Road, Atlanta, GA 30329; (404) 828-5380 (this is not a toll-free number); and Sylvester Wallace at
Applications for assistance under the Grants for Transportation of Veterans in Highly Rural Areas Program must be submitted to
The application can be found at
Applications may not be sent by facsimile. Applications must be submitted to
Access to VA care for veterans that are in highly rural areas continues to be an issue across the United States. VA has established this program to help address barriers to access to care. This program funds innovative approaches to transporting veterans in highly rural areas who typically have longer commute times to Department of Veterans Affairs medical centers (VA Medical Centers).
VA Veterans Transportation Program (VTP) is pleased to announce that it is seeking grant renewal applications for Grants for Transportation of Veterans in Highly Rural Areas. This program furthers the Department's mission by offering renewal grants to current grantees to enable them to continue to assist veterans in highly rural areas through innovative transportation services to travel to VA medical centers and to otherwise assist in providing transportation services in connection with the provision of VA medical care to these veterans.
Funding applied for under this Notice is authorized by section 307 of the Caregivers and Veterans Omnibus
In accordance with 38 CFR 17.710, VA is issuing this Notice for renewal grants under the Grants for Transportation of Veterans in Highly Rural Areas Program for fiscal year 2016. Approximately $3 million is authorized to be appropriated for this fiscal year. If additional funding becomes available, VA will issue additional Notices of Funding Availability to permit other grantees to apply for Grants under the Program (in accordance with the terms and conditions of such Notices of Funding Availability). The following requirements apply to grants awarded under this Notice:
• One renewal grant may be awarded to each grantee for fiscal year 2016 for each highly rural area in which the grantee provides transportation services.(A listing of the highly rural counties can be found at this Web site under additional resources:
• Transportation services may not be simultaneously provided by more than one grantee in any single highly rural area.
• No single grant will exceed $50,000.
• A veteran who is provided transportation services through a grantee's use of these grant monies will not be charged for such services.
• Renewal grants awarded under this Notice will be for a 1-year period.
• All awards are subject to the availability of appropriated funds and to any modifications or additional requirements that may be imposed by law.
Current 2015 grantees are the only eligible entities that are eligible to apply for a renewal grant. Interested eligible entities must submit a complete renewal grant application package to be considered for a grant renewal. Further, a renewal grant will only be awarded if the grantee's program will remain substantially the same as the program for which the original grant was awarded. How the grantee will meet this requirement must be specifically addressed in the renewal grant application.
This solicitation does not require grantees to provide matching funds as a condition of receiving such grants.
Additional grant application requirements are specified in the application package. Submission of an incorrect or incomplete application package will result in the application being rejected during the threshold review, the initial review conducted by VA, to ensure the application package contains all required forms and certifications. Complete packages will then be subject to the evaluation/scoring and selection processes described in § 17.705(c) and (d), respectively. Applicants will be notified of any additional information needed to confirm or clarify information provided in the renewal grant application and the deadline by which to submit such information.
Renewal applications will be submitted through
Registration in
Search for the funding opportunity on
Submit an application consistent with this solicitation by following the directions in
If an applicant experiences unforeseen
To ensure a fair competition for limited discretionary funds, the following conditions are not valid reasons to permit late submissions: (1) Failure to begin the registration process in sufficient time, (2) failure to follow
This section describes what a renewal application must include. Applicants should anticipate that failure to submit an application that contains all of the specified elements will result in the rejection of their application at the threshold review stage. Moreover, applicants should anticipate that if applications are not adequately responsive to the scope of the
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Budget Detail Worksheet: A sample SF 424A Budget Detail Worksheet can be found at the
Budget Narrative: The Budget Narrative should thoroughly and clearly describe
Budget Brief (example):
1. Our organization requests __ for the acquisition of __ van(s).
2. The total cost of the van(s) __. This is the amount requested from VA.
3. Our organization will utilize __ for innovative approaches for transporting veterans. This is the amount requested from VA for a maximum of $50,000.
Indirect costs are allowed only if the applicant has a federally approved indirect cost rate. (This requirement does not apply to units of local government.) A copy of the rate approval must be attached. If the applicant does not have an approved rate, one can be requested by contacting the applicant's cognizant federal agency, which will review all documentation and approve a rate for the applicant organization or, if the applicant's accounting system permits, costs may be allocated in the direct cost categories. If VA is the cognizant federal agency, obtain information needed to submit an indirect cost rate proposal at the contact person listed in this solicitation.
If an application identifies a subrecipient that is either (1) a tribe or tribal organization or (2) a third party proposing to provide direct services or assistance to residents on tribal lands, then a current authorizing resolution of the governing body of the tribal entity or other enactment of the tribal council or comparable governing body authorizing the inclusion of the tribe or tribal organization and its membership must be included with the application. In those instances when an organization or consortium of tribes proposes to apply for a grant on behalf of a tribe or multiple specific tribes, then the application must include a resolution from all tribes that will be included as a part of the services/assistance provided under the grant. A consortium of tribes for which existing consortium bylaws allow action without support from all tribes in the consortium (
Renewal grant applications under the Grants for Transportation of Veterans in Highly Rural Areas Program must be submitted to
The application can be found at
Renewal grant applications may not be sent by facsimile. These applications must be submitted to
Some states require that applicants must contact their State's Single Point of Contact (SPOC) to find out and comply with the State's process, to comply with Executive Order (E.O.) 12372 (1982). Names and addresses of the SPOCs are listed in the Office of Management and Budget's homepage at
Grants will only be awarded to those organizations that are eligible under law as described in the eligibility information section.
For technical assistance with submitting the application, contact the
Note: The
Additional forms that may be required in connection with an award are available for download on
VA is committed to ensuring a fair and open process for awarding these renewal grants. The VTP Office will review the renewal grant application to make sure that the information presented is reasonable, understandable, measurable, and achievable, as well as consistent with the solicitation. Peer reviewers will conduct a threshold review of all applications submitted under this solicitation to ensure they meet all of the critical elements and all other minimum requirements as identified herein. The VTP Office may use either internal peer reviewers, external peer reviewers, or a combination to review the applications under this solicitation. An external peer reviewer is an expert in the field of the subject matter of a given solicitation who is NOT a current VA employee. An internal reviewer is a current VA employee who is well-versed or has expertise in the subject matter of this solicitation. Eligible applications will then be evaluated, scored, and rated by a peer review panel. Peer reviewers' ratings and any resulting recommendations are advisory only.
The VTP, Member Services Office conducts a financial review of applications for potential discretionary awards to evaluate the fiscal integrity and financial capability of applicants; examines proposed costs to determine if the Budget Detail Worksheet and Budget Narrative accurately explain project costs; and determines whether costs are reasonable, necessary, and allowable under applicable federal cost principles and agency regulations.
Absent explicit statutory authorization or written delegation of authority to the contrary, the Veterans Health Administration, through the VTP Office, will forward the reviewers' recommendations for award to the Secretary of Veterans Affairs, who will then review and approve each award decision. Such determinations by the Secretary will be final. VA will also give consideration to factors including, but not limited to: underserved populations, geographic diversity, strategic priorities, and available funding when making awards.
Selection of Renewal Grants for Transportation of Veterans in Highly Rural Areas is very competitive. Listed below are the scoring and selection criteria:
1. Renewal Grant Scoring: Renewal applications will be scored using the following selection criteria:
A. VA will award up to 55 points (an applicant must score at a minimum of 27.5 points) based on the success of the grantee's program, as demonstrated by the following: Application shows that the grantee or identified subrecipient provided transportation services which allowed participants to be provided medical care timely and as scheduled; and application shows that participants were satisfied with the transportation services provided by the grantee or identified subrecipient, as described in the Notice;
B. VA will award up to 35 points (an applicant must score at a minimum of 17.5 points) based on the cost effectiveness of the program, as demonstrated by the following: The grantee or identified subrecipient administered the program on budget and grant funds were utilized in a sensible manner, as interpreted by information provided by the grantee to VA under 38 CFR 17.725(a)(1-7); and
C. VA will award up to 15 (an applicant must score at a minimum of 7.5 points) points based on the extent to which the program complied with the grant agreement and applicable laws and regulations.
2. Renewal Grant Selection: VA will use the following process to award renewal grants:
A. VA will rank those grantees who receive at least the minimum amount of total points (52.5) and points per category set forth in the Notice. The grantees will be ranked in order from highest to lowest scores.
B. VA will use the grantee's ranking as the basis for selection for funding. VA will fund the highest-ranked grantees for which funding is available.
Successful applicants will receive a Notice of Award (NoA) signed and dated by the Assistant Deputy Under Secretary for Health for Administrative Operations that will set forth the amount of the award and other pertinent information. The NoA is the legal document/instrument issued to notify the awardee that an award has been made and that funds may be requested. It will also include standard Terms and
The NoA will be sent through the U.S. Postal Service to the awardee organization as listed on its SF424. Note that any communication between the VTP Office and awardees prior to the issuance of the NoA is
Recipients will use the U.S. Department of Health and Human Services Payment Management System for grant drawdowns. Instructions for submitting requests for payment may be found at
Unsuccessful applicants will be notified of their status by letter, which will likewise be sent through the U.S. Postal Service to the applicant organization as listed on its SF 424.
After an applicant is selected for a renewal grant in accordance with 38 CFR 17.705(d), VA will draft a renewal grant agreement to be executed by the Assistant Deputy Under Secretary for Health for Administrative Operations in VA and the grantee. Upon execution of the renewal grant agreement, VA will obligate the approved amount. The renewal grant agreement will provide that:
1. The grantee must operate the program in accordance with the provisions of this section and the grant application;
2. If a grantee's renewal application identified a subrecipient, such subrecipient must operate the program in accordance with the provisions of this section and the grant application; and
3. If a grantee's application identified that funds will be used to procure or operate vehicles to directly provide transportation services, the following requirements must be met:
A. Title to the vehicles must vest solely in the grantee or in the identified subrecipient or with leased vehicles in an identified lender;
B. The grantee or identified subrecipient must, at a minimum, provide motor vehicle liability insurance for the vehicles to the same extent they would insure vehicles procured with their own funds;
C. All vehicle operators must be licensed in a U.S. State or Territory to operate such vehicles;
D. Vehicles must be safe and maintained in accordance with the manufacturer's recommendations; and
E. Vehicles must be operated in accordance with applicable Department of Transportation regulations concerning transit requirements under the Americans with Disabilities Act.
Successful applicants selected for awards must agree to comply with additional applicable legal requirements upon acceptance of an award. (VA strongly encourages applicants to review the information pertaining to these additional requirements prior to submitting a renewal application.) As to those additional requirements, we note that while their original grants were subject to additional legal requirements as set forth in 38 CFR parts 43 and 49 those regulatory provisions have since been superseded by the Common Rule governing all Federal Grant Programs. The Common Rule is codified at 2 CFR part 200. Thus, grantees and identified subrecipients awarded renewal grants under the Program must agree as part of their grant agreement to comply with all requirements of the Common Rule, as applicable.
Awardees must agree to cooperate with any VA evaluation of the program and provide required quarterly, annual, and final (at the end of the fiscal year) reports in a form prescribed by VTP. A final report consists of a summation of grant activities which include progress toward goals, financial administration of grant funds, grant administration issues and barriers. Reports are to be submitted electronically. These reports must outline how grant funds were used, describe program progress and barriers, and provide measurable outcomes.
Required quarterly and annual reports must include the following information:
• Record of time expended assisting with the provision of transportation services;
• Record of grant funds expended assisting with the provision of transportation services;
• Trips completed;
• Total distance covered;
• Veterans served;
• Locations which received transportation services; and
• Results of veteran satisfaction survey.
The VTP is responsible for program monitoring. All awardees will be required to cooperate in providing the necessary data elements to the VTP. The goal of program monitoring is to ensure program requirements are met; this will be accomplished by tracking performance and identifying quality and compliance problems through early detection. Methods of program monitoring may include: Monitoring the performance of a grantee's or subrecipient's personnel, procurements, and/or use of grant-funded property; collecting, analyzing data, and assessing program implementation and effectiveness; assessing costs and utilization; and providing technical assistance when needed. Site visit monitoring will include the above-described activities, in addition to the conduct of safety assessments and, if applicable, verification of both current driver's licenses and vehicle insurance coverage.
Awardees are required to submit the FFR SF 425 on a quarterly basis. More details will be announced in the NoA.
Awardees must comply with the audit requirements of Office of Management and Budget (OMB) Uniform Guidance 2 CFR part 200 subpart F. Information on the scope, frequency and other aspects of the audits can be found on the internet at
Any changes in a grantee's program activities which result in deviations from the grant renewal agreement must be reported to VA.
Additional reporting requirements may be requested by VA to allow VA to fully assess program effectiveness.
Applicants should anticipate that all recipients (excluding an individual recipient of Federal assistance) of awards of $25,000 or more under this solicitation, consistent with the Federal Funding Accountability and Transparency Act of 2006 (FFATA), Pub. L. 109-282 (Sept. 26, 2006), will be required to report award information on the subaward reporting system of any first-tier subawards totaling $25,000 or more, and, in certain cases, to report information on the names and total compensation of the five most highly compensated executives of the recipient and first-tier subrecipients. Each applicant entity must ensure that it has the necessary processes and systems in place to comply with the reporting requirements should it receive funding.
It is expected that reports regarding subawards will be made through the FFATA Subaward Reporting System (FSRS) found at
Please note also that applicants should anticipate that no subaward of an award made under this solicitation may be made to a subrecipient that is subject to the terms of FFATA unless the potential subrecipient acquires and provides a DUNS number.
Pursuant to 38 CFR 17.730(a), VA may recover from the grantee any funds that are not used in accordance with a grant agreement. If VA decides to recover funds, VA will issue to the grantee a notice of intent to recover grant funds, and the grantee will then have 30 days to submit documentation demonstrating why the grant funds should not be recovered. After review of all submitted documentation, VA will determine whether action will be taken to recover the grant funds. When VA determines action will be taken to recover grant funds from the grantee, the grantee is then prohibited under 38 CFR 17.730(b) from receipt of any further grant funds.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on August 2, 2016, for publication.
Civil Rights Division, Department of Justice.
Final rule.
The Department of Justice (Department) is issuing this final rule to amend its Americans with Disabilities Act (ADA) regulations in order to incorporate the statutory changes to the ADA set forth in the ADA Amendments Act of 2008 (ADA Amendments Act or the Act), which took effect on January 1, 2009. In response to earlier Supreme Court decisions that significantly narrowed the application of the definition of “disability” under the ADA, Congress enacted the ADA Amendments Act to restore the understanding that the definition of “disability” shall be broadly construed and applied without extensive analysis. Congress intended that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their statutory obligations not to discriminate based on disability. In this final rule, the Department is adding new sections to its title II and title III ADA regulations to set forth the proper meaning and interpretation of the definition of “disability” and to make related changes required by the ADA Amendments Act in other sections of the regulations.
This rule will take effect October 11, 2016.
Rebecca Bond, Section Chief, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, at (202) 307-0663 (voice or TTY); this is not a toll-free number. Information may also be obtained from the Department's toll-free ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).
You may obtain copies of this final rule in an alternative format by calling the ADA Information Line at (800) 514-0301 (voice) and (800) 514-0383 (TTY). This final rule is also available on the ADA Home Page at
The meaning and interpretation of the definitions of “disability” in the title II and title III regulations are identical, and the preamble will discuss the revisions to both regulations concurrently. Because the ADA Amendments Act's revisions to the ADA have been codified into the U.S. Code, the final rule references the revised U.S. Code provisions except in those cases where the reference is to the Findings and Purposes of the ADA Amendments Act, in which case the citation is to section 2 of Public Law 110-325, September 25, 2008.
This final rule was submitted to the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs for review prior to publication in the
This rule is necessary in order to incorporate the ADA Amendments Act's changes to titles II (nondiscrimination in State and local government services) and III (nondiscrimination by public accommodations and commercial facilities) of the ADA into the Department's ADA regulations and to provide additional guidance on how to apply those changes.
The ADA Amendments Act was signed into law by President George W. Bush on September 25, 2008, with a statutory effective date of January 1, 2009. Public Law 110-325, sec. 8, 122 Stat. 3553, 3559 (2008). The Act authorizes the Attorney General to issue regulations under title II and title III of the ADA to implement sections 3 and 4 of the Act, including the rules of construction set forth in section 3. 42 U.S.C. 12205a.
The ADA Amendments Act made important changes to the meaning and interpretation of the term “disability” in the ADA in order to effectuate Congress's intent to restore the broad scope of the ADA by making it easier for an individual to establish that he or she has a disability.
The ADA Amendments Act's revisions to the ADA apply to title I (employment), title II (State and local governments), and title III (public accommodations) of the ADA. Accordingly, consistent with Executive Order 13563's instruction to agencies to coordinate rules across agencies and harmonize regulatory requirements, the Department has adopted, where appropriate, regulatory language that is identical to the revisions to the Equal Employment Opportunity Commission's (EEOC) title I regulations implementing the ADA Amendments Act.
The final rule retains nearly all of the proposed regulatory text, although some sections were reorganized and renumbered. The section-by-section analysis in appendix C to part 35 and appendix E to part 36 responds to comments and provides additional interpretive guidance on particular provisions. The revisions to the regulatory text, which include substantive changes in response to comments, include the following:
• Added Attention-Deficit/Hyperactivity Disorder (ADHD) as an example of a physical or mental impairment in §§ 35.108(b)(2) and 36.105(b)(2).
• Added “writing” as an example of a major life activity in §§ 35.108(c) and 36.105(c).
• Revised the discussion of the “regarded as prong” in §§ 35.108(f) and 36.105(f) to clarify that the burden is on a covered entity to establish that, objectively, an impairment is “transitory and minor” and therefore not covered by the ADA.
• Modified the rules of construction to make them more consistent with the statute and to provide more clarity, including §§ 35.108(a)(2) and 36.105(a)(2), 35.108(c)(2) and 36.105(c)(2), and 35.108(d)(1) and 36.105(d)(1).
• Revised or added several provisions to more closely conform to the EEOC regulation.
As noted above, Congress enacted the ADA Amendments Act in 2008 to ensure that persons with disabilities who were denied coverage previously under the ADA would again be able to rely on the protections of the ADA. As a result, the Department believes that the enactment of the law benefits millions of Americans, and that the benefits to many of these individuals are non-quantifiable, but nonetheless significant. This rule incorporates into the Department's titles II and III regulations the changes made by the ADA Amendments Act. In accordance with OMB Circular A-4, the Department estimates the costs and benefits of this proposed rule using a pre-ADA Amendments Act baseline. Thus, the effects that are estimated in this analysis are due to statutory mandates that are not under the Department's discretion. The Department has determined that the costs of this rule do not reach $100 million in any single year, and thus it is not an economically significant rule.
In the Initial Regulatory Assessment (Initial RA), the analysis focused on estimating costs for processing and providing reasonable modifications and testing accommodations
The data used to support the estimates in this Final Regulatory Assessment (Final RA) focus on (1) the increase in the number of postsecondary students or national examination test takers requesting and receiving accommodations—specifically, requests for extra time on exams—as a result of the changes made to the ADA by the ADA Amendments Act; and (2) the actual cost of these additional accommodations, which involves costs of providing staff with the training on the changes made to the ADA by the ADA Amendments Act, administrative costs to process the additional accommodation requests made as a direct result of the ADA Amendments Act, and the costs of additional proctor time needed for these additional accommodation requests. For both postsecondary institutions and national testing entities, costs are broken down into three components:
• One-time cost of training staff on relevant impact of ADA Amendments Act;
• Annual cost of processing additional accommodation requests for extra exam time made as a direct result of the ADA Amendments Act; and
• Annual cost of proctoring additional time on exams as a direct result of the ADA. Amendments Act.
Based on the Department's calculations, total costs to society for implementing the revisions to the ADA Amendments Act range from $31.4 million to $47.1 million in the first year. The first year of costs will be higher than all subsequent years because the first year includes the one-time costs of
Taking these costs over the next 10 years and discounting to present value terms at a rate of 7 percent, the total costs of implementing this final rule are approximately $214.2 million over 10 years, as shown in the table below.
The ADA Amendments Act was signed into law by President George W. Bush on September 25, 2008, with a statutory effective date of January 1, 2009. Public Law 110-325, sec. 8. As with other civil rights laws, individuals seeking protection in court under the anti-discrimination provisions of the ADA generally must allege and prove that they are members of the “protected class.” Under the ADA, this typically means they have to show that they meet the statutory definition of being an “individual with a disability.”
In the original ADA, Congress defined “disability” as (1) a physical or mental impairment that substantially limits one or more major life activities of an individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. 12202(1). Congress patterned this three-part definition of “disability”—the “actual,” “record of,” and “regarded as” prongs—after the definition of “handicap” found in the Rehabilitation Act of 1973.
That expectation was not fulfilled. Public Law 110-325, sec. 2(a)(3). The holdings of several Supreme Court cases sharply narrowed the broad scope of protection Congress originally intended under the ADA, thus eliminating protection for many individuals whom Congress intended to protect.
As a result of these Supreme Court decisions, lower courts ruled in numerous cases that individuals with a range of substantially limiting impairments were not individuals with
Consequently, Congress amended the ADA with the Americans with Disabilities Act Amendments Act of 2008. This legislation is the product of extensive bipartisan efforts, and the culmination of collaboration and coordination between legislators and stakeholders, including representatives of the disability, business, and education communities.
The ADA Amendments Act modified the ADA by adding a new “findings and purposes” section focusing exclusively on the restoration of Congress's intent in the ADA to broadly interpret the term “disability” to ensure expansive coverage. These new ADA Amendments Act-specific findings and purposes are meant to restore a broad scope of protection under the ADA by providing clear and enforceable standards that support the mandate to eliminate discrimination against people with disabilities. The “purposes” provisions specifically address the Supreme Court decisions that narrowed the interpretation of the term “disability,” rejecting the
The findings and purposes section of the ADA Amendments Act “gives clear guidance to the courts and . . . [is] intend[ed] to be applied appropriately and consistently.” 154 Cong. Rec. S8841 (daily ed. Sept. 16, 2008) (Statement of the Managers). The Department has amended its regulations to reflect the ADA Amendments Act, including its findings and purposes.
The ADA Amendments Act restores the broad application of the ADA by revising the ADA's “Findings and Purposes” section, expanding the statutory language regarding the meaning and interpretation of the definition of “disability,” providing specific rules of construction for interpreting that definition, and expressly superseding the standards enunciated by the Supreme Court in
First, the ADA Amendments Act deletes two findings that were in the ADA: (1) That “some 43,000,000 Americans have one or more physical or mental disabilities,” and (2) that “individuals with disabilities are a discrete and insular minority.” 154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Statement of the Managers);
Second, the ADA as amended clarifies Congress's intent that the definition of “disability” “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.” 42 U.S.C. 12102(4)(A).
Third, the ADA as amended provides an expanded definition of what may constitute a “major life activity,” within the meaning of the ADA. 42 U.S.C. 12102(2). The statute provides a non-exhaustive list of major life activities and specifically expands the category of major life activities to include the operation of major bodily functions.
Fourth, although the amended statute retains the term “substantially limits” from the original ADA definition, Congress set forth rules of construction applicable to the meaning of substantially limited that make clear that the term must be interpreted far more broadly than in
Fifth, the ADA as amended prohibits consideration of the ameliorative effects of mitigating measures such as medication, assistive technology, or reasonable modifications when determining whether an impairment constitutes a disability. 42 U.S.C. 12102(4)(E)(i). Congress added this provision to address the Supreme Court's holdings that the ameliorative effects of mitigating measures must be considered in determining whether an impairment substantially limits a major life activity. Public Law 110-325, sec. 2(b)(2). The ADA as amended also provides that impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active. 42 U.S.C. 12102(4)(D).
Sixth, the ADA as amended makes clear that, despite confusion on the subject in some court decisions, the “regarded as” prong of the disability definition does not require the individual to demonstrate that he or she has, or is perceived to have, an impairment that substantially limits a major life activity. 42 U.S.C. 12102(3). With this clarifying language, an individual can once again establish coverage under the law by showing that he or she has been subjected to an action prohibited under the Act because
Finally, the ADA as amended gives the Attorney General explicit authority to issue regulations implementing the definition of “disability.” 42 U.S.C. 12205a.
The Department published its Notice of Proposed Rulemaking (NPRM) proposing to amend its title II and title III ADA regulations in the
Many commenters on the NPRM noted the value of the regulation to people with disabilities while a number of commenters on the Department's NPRM expressed concern that the Department's regulatory assessment unduly focused on individuals with learning disabilities who sought accommodations in testing or educational situations. These commenters asserted that the Department's discussion of the potential costs for testing entities or educational entities of complying with the ADA Amendments Act and this rule could be misunderstood to mean that the Department believed the changes in the definition of “disability” did not have an impact on individuals with other types of disabilities.
As discussed in the regulatory assessment, the Department believes that persons with all types of impairments, including, but not limited to, those enumerated in §§ 35.108(b) and 36.105(b), will benefit from the ability to establish coverage under the ADA as amended, and will therefore be able to challenge the denial of access to goods, services, programs, or benefits based on the existence of a disability. The Department's regulatory assessment is not a statement about the coverage of the ADA. Rather, it is a discussion of identifiable incremental costs that may arise as a result of compliance with the ADA Amendments Act and these implementing regulations. As explained in the regulatory assessment and under Section VII.A below, the Department believes that those costs are limited primarily to the context of providing reasonable modifications in higher education and testing accommodations by testing entities.
The EEOC is responsible for regulations implementing title I of the ADA addressing employment discrimination based on disability. On March 25, 2011, the EEOC published its final rule revising its title I regulation to implement the revisions to the ADA contained in the ADA Amendments Act. 76 FR 16978 (Mar. 25, 2011).
Because the ADA's definition of “disability” applies to title I as well as titles II and III of the ADA, the Department has made every effort to ensure that its proposed revisions to the title II and III regulations are consistent with the provisions of the EEOC final rule. Consistency among the title I, title II, and title III rules will promote consistent application of the requirements of the ADA Amendments Act, regardless of the Federal agency responsible for enforcement or the ADA title that is enforced. Further, because most entities subject to either title II or title III are also subject to title I with respect to employment, they should already be familiar with the revisions to the definition of “disability” in the 4-year-old EEOC revised regulation. Differences in language between the title I rules and the Department's title II and title III rules are noted in the Section-by-Section analysis and are generally attributable to structural differences between the title I rule and the title II and III rules or to the fact that certain sections of the EEOC rule deal with employment-specific issues.
This final rule has been drafted in accordance with Executive Order 13563 of January 18, 2011, 76 FR 3821, Improving Regulation and Regulatory Review, and Executive Order 12866 of September 30, 1993, 58 FR 51735, Regulatory Planning and Review. Executive Order 13563 directs agencies, to the extent permitted by law, to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with obtaining the regulatory objectives; and, in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. Executive Order 13563 recognizes that some benefits and costs are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
The Department has determined that this rule is a “significant regulatory action” as defined by Executive Order 12866, section 3(f). The Department has determined, however, that this rule is not an economically significant regulatory action, as it will not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This rule has been reviewed by the Office of Management and Budget (OMB) pursuant to Executive Orders 12866 and 13563.
This rule is necessary in order to incorporate into the Department's ADA regulations implementing titles II (nondiscrimination in State and local government services) and III (nondiscrimination by public accommodations and commercial facilities) the ADA Amendments Act's changes to the ADA and to provide additional guidance on how to apply those changes. The ADA Amendments Act, which took effect on January 1, 2009, was enacted in response to earlier Supreme Court decisions that significantly narrowed the application of the definition of “disability” under the ADA.
The Department notes that the Supreme Court cases limiting the application of the definition of “disability” had the most significant impact on individuals asserting coverage under title I of the ADA with respect to employment. The legislative history of the ADA Amendments Act is replete with examples of how individuals with a range of disabilities were unable to successfully challenge alleged discriminatory actions by employers because courts found that they did not qualify as individuals with disabilities under the Supreme Court's narrow standards.
In the NPRM, the Department requested public comments on whether the changes made by the ADA Amendments Act to titles II and III and that are addressed in the proposed rule would have benefits or costs in areas other than additional time for postsecondary students and national examination test takers with ADHD or learning disabilities. Those comments and the Department's response are discussed below. The Department wishes to stress that, although its economic analysis is focused on estimating costs for processing requests and providing extra time on exams as a direct result of the ADA Amendments Act, the ADA, as amended, extends coverage to individuals with the full range of disabilities and affords such individuals the full range of nondiscrimination protections under the ADA.
This section discusses public comments to the Initial RA that accompanied the NPRM, as well as changes made to the estimation of likely costs of this rule in response to those comments.
While more than 50 comments were received during the NPRM comment period, only a few of those directly addressed the assumptions, data, or methodology used in the Initial RA. The Department received comments from persons with disabilities, organizations representing educational institutions and testing entities, individual academics, and other private individuals. The preamble to this final rule provides the primary forum for substantive responses to these comments.
Many commenters expressed appreciation for the proposed regulation, with several noting that the regulation would offer qualitative and quantitative benefits. Some of the quantitative benefits noted by commenters were a reduction in litigation costs as well as access to educational opportunities for persons with disabilities that would enhance employment prospects, productivity, and future earnings and investments. Qualitative benefits referenced in the comments included enhanced personal self-worth and dignity, as well as the values of equity, fairness, and full participation. Other commenters expressed concern about costs associated with implementation of the regulation.
The Department reviewed a number of comments suggesting that it underestimated the costs that postsecondary schools or national testing entities will incur to comply with the ADA Amendments Act. Commenters stated that the ADA Amendments Act will lead to a significant increase in the number of students seeking accommodations from postsecondary schools, which will lead to substantially increased direct costs (
Those comments and as well as other related comments, are specifically addressed below. But, as a threshold matter, the Department believes that the concerns predicated on the assumption of a significant rise in students seeking accommodations due to changes brought about by the ADA Amendments Act are overstated. One of the primary purposes of the ADA Amendments Act was to restore ADA coverage to a subset of individuals with disabilities who lost ADA protection as a result of a series of
While the Department recognizes that there has been an increase in the number of students with disabilities requesting accommodations at postsecondary institutions, much of this increase is likely not attributable to the passage of the ADA Amendments Act. Commenters and existing data suggest that, for the most part, increases in the number of students with disabilities attending college and seeking accommodations are likely related to the following factors:
• There are more diagnoses of disabilities in children overall since 1997;
• More students are attending college generally;
• Other laws such as the Individuals with Disabilities Education Act (IDEA) and section 504 are causing students with disabilities to be identified more widely and at a younger age;
• The stigma of identifying as a person with a disability appears to have diminished since the passage of the ADA in 1990;
• Diagnoses of autism spectrum disorders among children have increased significantly since 1997, perhaps as a result of improved diagnostic tools and protocols;
• Postsecondary schools have improved their ability to accommodate students with disabilities, thus encouraging more students to seek such accommodations, and empowering students with disabilities to enroll in college and remain enrolled there.
Most of the students affected by the ADA Amendments Act are students whose impairments did not clearly meet the definition of “disability” under the ADA after the series of Supreme Court decisions beginning in 1999 reduced the scope of that coverage. For instance, under the narrowed scope of coverage, some individuals with learning disabilities or ADHD may have been denied accommodations or failed to request them in the belief that such requests would be denied. As a result, the most likely impact of the ADA Amendments Act is seen in the number of students with disabilities eligible to request and receive accommodations in testing situations. There are different types of accommodations requested in testing situations, but requests for additional exam time appear to be the type of accommodation most likely to have a significant, measurable cost impact. Other types of accommodations requested in testing situations are expected to incur few to no additional costs as a result of the ADA Amendments Act and this rule. For instance, requests for accommodations such as the use of assistive technology or the need for alternative text formats were the types of accommodations that would have been granted prior to the passage of the ADA Amendments Act because students with sensory disabilities needing these types of accommodations would have been covered by the ADA even under the narrower scope of coverage arising from the application of the Supreme Court's decisions in
One commenter, however, asserted that costs should be estimated for entities other than postsecondary institutions and testing entities, such as elementary and secondary schools, courthouses, etc. Certain concerns related to elementary and secondary schools are addressed below, but the Department found no direct evidence to indicate that institutions other than postsecondary institutions and testing entities will incur any significant economic impact as a result of accommodating individuals now covered under the ADA after passage of the ADA Amendments Act. Even after conducting further research, the Department was unable to identify any accommodations that would result in compliance costs that could be specifically attributable to the ADA Amendments Act other than those identified and measured in this analysis—
One commenter cited the 2013-2014 Institutional Disability Access Management Strategic Plan at Cornell University
Many of the commenters' points regarding increased costs appear to apply to concerns about the costs of complying with the ADA generally and not to costs related to expanded coverage due to the ADA Amendments Act. It is true that in some cases the costs of accommodating some students with more severe mobility and sensory disabilities could be significant, but these students were clearly covered even under the restrictive standards set forth by
The Department acknowledges that postsecondary schools and national testing entities will incur some costs to update their written policies and training procedures to ensure that the definition of “disability” is interpreted in accordance with the requirements of the ADA Amendments Act, but has found no evidence to indicate that such costs would be high. The Department also notes that even prior to passage of the ADA Amendments Act, many postsecondary schools had policies in place that were broader and more comprehensive than would have been required under the more restrictive coverage set forth in
Some commenters argued that the Department's estimate of a one-time cost of $500 per institution to change policies and procedures in compliance with the ADA Amendments Act was too low. Instead, one commenter proposed an estimated one-time cost of $2,500 per institution, and another commenter suggested an estimated one-time cost of $5,000 per institution for the first year's training costs. The underlying data and methodology to support these estimates were not provided by these commenters.
The Department has found no data to substantiate the claims that the cost of changing existing policies and training procedures to comply with the ADA Amendments Act will be $2,500 or $5,000 per institution. The commenters proposing those costs did not provide any detailed evidence or arguments in support of such costs, and the Department's research found no evidence to indicate that any institutions have incurred training or policy revision costs of that magnitude since the ADA Amendments Act became effective in 2009. The commenter suggesting a $5,000 cost cites to one institution's disability access plan to suggest some of the types of costs that might be incurred. The referenced document, however, does not provide specific dollar figures and is not ADA Amendments Act specific. Therefore, the Department does not believe that the commenter's projected cost increases are correct because, as discussed above, the programmatic concerns identified in this document pertained to ADA compliance as a whole, but not with changes to the ADA created by the ADA Amendments Act specifically. The Department acknowledges that the absence of evidence of such costs, however, is not necessarily conclusive that some costs do not or will not exist. Nevertheless, the Department believes that, had postsecondary schools incurred $2,500 to $5,000 in such compliance costs since 2009 or if they expected to incur such costs going forward, some indicia of these costs would be readily apparent.
Because no relevant supporting information regarding the commenters' estimates was provided, the Department conducted additional independent research and interviewed representatives at two postsecondary institutions to determine whether any additional formal or informal training had been needed to understand the implications of the ADA Amendments Act (and make adjustments to existing policies and procedures to conform to the Act's requirements). One of those two institutions stated that no additional training had been needed. The second institution said that additional training had been provided during meetings with staff. Approximately two hours per staff member (
Some commenters argued that the rule will lead to a significant increase in postsecondary institution accessibility support staff time devoted to disability accommodation issues, perhaps even requiring postsecondary institutions to hire additional personnel. One commenter representing higher educational institutions estimated that each affected institution would be required to hire one new full-time staff member, at $40,000 per year, to address increased student requests. This commenter cited a study that indicated that the mean number of staff who assist students with disabilities is four per campus. The Department questions the commenter's estimate that each affected institution would have to increase their
Similarly, some commenters argued that the Department needed to incorporate estimates of the additional administrative time needed to review and administer additional requests for testing accommodations for both postsecondary and national testing entities. To address these concerns, the Department contacted several universities and testing entities, but received responses from only one school and one testing entity, and those responses were inconclusive. The postsecondary school said that there has been no noticeable increase in applications for accommodations since the passage of the ADA Amendments Act, but the testing entity stated that it has detected a large increase in requests for additional testing time since the passage of the ADA Amendments Act. In light of the uncertainty regarding any potential additional staff time needed to review additional requests for accommodations, the Department has made several assumptions based on research and discussions with subject matter experts and impacted entities so as to incorporate estimated costs for this item. This information is presented further below.
Some commenters argued that the ADA Amendments Act would lead to increased litigation and internal disputes against institutions, as the scope of potential litigants would expand due to the increase in individuals covered by the ADA as a result of the passage of the ADA Amendments Act. Other commenters disagreed, stating that the new regulation would reduce the volume of complaints and litigation and streamline outstanding complaints and litigation due to increased consistency and predictability in judicial interpretation and executive enforcement. The Department does not agree with the commenters who asserted that the impact of the ADA Amendments Act will lead to an increase in litigation and disputes. The ADA Amendments Act clarified several contentious or uncertain aspects of the ADA, and thus may have decreased the overall amount of ADA litigation by reducing ambiguities in the law. However, assessing the impact of covered entities' failures to comply (or alleged failures to comply) with the requirements of the ADA, as amended, and the legal challenges that may result from compliance failures, are not properly within the ambit of the Final RA, nor do we have any relevant information that would assist in an analysis of such issues even if it they were appropriate to include in the Final RA.
One commenter stated that the Department placed too much emphasis on the cost of proctor supervision when assessing the cost of extra exam time in postsecondary institutions. The commenter posited that many tests are administered electronically; accordingly, the costs of those tests are appropriately based on the cost of “seat time” and not the cost of proctor supervision. Unfortunately, no commenter provided a description of what the additional costs per student might be in such circumstances, nor did any commenter explain how such costs could be computed. The Department contacted several postsecondary institutions and testing entities for approximations of seat time costs, but did not receive any relevant information.
Two commenters noted that for some long national examinations, additional testing time would necessitate the provision of an additional testing day that would increase costs substantially. This potential cost was not estimated in the Initial RA because research indicated that prior to the passage of the ADA Amendments Act, national examination institutions were already accommodating individuals who required additional time because of disabilities already explicitly covered by the ADA. As a result, testing entities were already providing an additional testing day where necessary. Therefore, any individuals who would now request additional time on national exams lasting six hours or more as a direct result of the ADA Amendments Act would be accommodated alongside those individuals who would have been covered prior to the ADA Amendments Act, and any potential costs would likely be minimal. Despite this conclusion, the Department has nonetheless conducted a sensitivity analysis to assess these potential costs with the assumption that testing entities were not already providing an additional testing day to accommodate certain individuals with disabilities. Because an additional testing day for these examinations was likely already provided prior to passage of the ADA Amendments Act, the Department continues to believe that the costs of accommodating any additional students who are now seeking additional exam time as a direct result of the ADA Amendments Act will be minimal. As a result, the sensitivity analysis the Department has conducted likely overestimates these potential costs. Further information on the potential range of these costs can be found below.
Several commenters questioned the Department's approach of reducing the portion of students with ADHD who would be impacted by the ADA Amendments Act. In the Initial RA, the Department had assumed based on some available research that 30 percent of those who self-identify as having ADHD as their primary disability would not need additional testing time because they would not meet the clinical definition of the disability. One commenter raised concern about presenting a specific percentage of students with ADHD who would not meet that clinical definition, because that number might inadvertently become a benchmark for postsecondary institutions and national testing entities to deny accommodations to a similar percentage of applicants requesting additional exam time because of their ADHD. The Department did not intend for this percentage to establish a benchmark. Covered entities should continue to evaluate requests for additional exam time by all individuals with disabilities on an individualized basis. In direct response to these concerns, the Department has decided not to reduce the number of individuals with ADHD who could now receive testing accommodations as a direct result of the ADA Amendments Act.
A commenter representing institutions of higher education stated that the rule would have a significant impact on higher education as an industry, such that the rule should be considered “economically significant.” For the reasons indicated throughout
The commenter stated that the Department erred in its analysis by focusing primarily on college students with learning disabilities or ADHD and did not factor in potential costs related to students with other impairments including depression, schizophrenia, obsessive compulsive disorder, traumatic brain injuries, post-traumatic stress disorder, visual impairments not rising to the level of blindness, anxiety, autism, food allergies, or transitory impairments. Prior to passage of the ADA Amendments Act, higher educational institutions already were incurring costs to accommodate students with the above-referenced impairments that constituted disabilities. These costs are not attributable to this rulemaking and thus not analyzed as such. For the relatively small number of students with the above-referenced disabilities who might not have been covered prior to the passage of the ADA Amendments Act, the Department was unable to specifically identify or measure any potential costs that postsecondary institutions would incur in accommodating these students.
The commenter also stated that the Department's Initial RA should have considered the costs of academic accommodations other than extended testing time, such as “note takers, tutors, technology-based auxiliary aids, electronic versions of text-books and class materials, and other accommodations and aids,” as well as “significant costs resulting from accommodation requests outside the classroom context, such as those involving residence halls, food services or athletics.” The Department notes that, as with reasonable modifications and testing accommodations required prior to the ADA Amendments Act, the accommodations or auxiliary aids or services described by the commenter were being provided before the passage of the ADA Amendments Act and will not entail new costs specifically attributable to the ADA Amendments Act.
Several commenters addressed the possibility that the expanded definition of “disability” could result in more cases arising under the ADA, rather than under the IDEA, in elementary and secondary schools. An association focusing on children with learning disabilities noted that students who manage their disabilities well often find that school districts challenge their IDEA claims of disability, but that such claims may meet with more success under the ADA or section 504 of the Rehabilitation Act. One commenter, whose comments were endorsed by several other groups, noted that particular subsets of children may be eligible for benefits under the ADA but not under the IDEA. These include students with episodic conditions, mitigated conditions, and conditions such as diabetes and seizure impairments that may require maintenance support, such as diet or medications. A national association of kindergarten through twelfth-grade educators indicated that, increasingly, in its view, some parents are more likely to seek school-related modifications for their child under the ADA, rather than the IDEA. This commenter suggested, accordingly, that ADA litigation would increase once parents become aware of the application of a broader definition of “disability” due to the ADA Amendments Act.
The Department recognizes that the definition of “disability” under the IDEA is different than that under the ADA.
A number of commenters stated that the rule might encourage some people without learning disabilities to claim that they have learning disabilities, so that they can take advantage of extra exam time. The Department has not identified any study suggesting that the release of this rule—more than six years after the effective date of the ADA Amendments Act—likely will motivate a spike in false claims for students seeking extra time on examinations. While individuals with learning disabilities previously denied accommodations may be motivated to seek recognition of their disabilities under this rule, because it may offer an improved opportunity for consideration of their unmet needs, the Department does not believe that individuals who might feign disabilities in pursuit of extra time would modify their behavior as a result of this rule; to the contrary, the motivation and opportunity to feign such disabilities would have existed prior to the passage of the ADA Amendments Act. The Department acknowledges that there will always be some individuals who seek to take advantage of rules that extend benefits to particular classes of individuals. However, the Department has determined that the costs of such fraudulent behavior cannot readily be computed. It appears that there is no generally accepted metric for
This section presents the calculations used to estimate the total costs resulting from the revisions to the title II and title III regulations to incorporate the changes made by the ADA Amendments Act. Costs are first presented for postsecondary institutions and then for national testing entities. For a more detailed explanation of the Department's methodology and data used to calculate these costs, please refer to relevant sections in the Final RA. The Final RA is available on Department's Web site at
As explained above, total costs to postsecondary institutions will include three components:
• One-time cost of training staff on relevant impact of ADA Amendments Act;
• Annual cost of processing additional accommodation requests for extra exam time made as a direct result of the ADA Amendments Act; and
• Annual cost of proctoring additional time on exams as a direct result of the ADA Amendments Act.
To calculate the annual costs to all postsecondary institutions for processing these additional accommodation requests and proctoring additional exam time as a direct result of the ADA Amendments Act, the potential number of students who could request and receive these accommodations needs to be calculated. Calculations for the three costs listed above plus the number of students who are eligible to receive and likely to request accommodations for extra exam time as a direct result of the ADA Amendments Act are presented below.
The annual one-time training cost for all postsecondary institutions is presented in Table 1 below. The methodology used to calculate this cost is explained further in Section 2.1 of the Final RA, and the sources for the data used are provided in Section 3.1.1 of the Final RA.
The number of additional eligible students likely to request and receive extra time on exams at postsecondary institutions as a direct result of the ADA Amendments Act is calculated in Tables 2 and 3 below. The methodology used for this calculation is explained further in Section 2.2 of the Final RA, and the sources for the data used are provided in Section 3.1.2 of the Final RA.
Table 4 below presents the calculations of the annual cost to postsecondary institutions for processing new accommodation requests for extra exam time. These requests are in addition to the ones currently received and processed by postsecondary institutions that are not being made as a direct result of the ADA Amendments Act. Costs depend on the number of students who will now be eligible to request and receive an accommodation for extra time on an exam as a direct result of the ADA Amendments Act revisions. The methodology used to calculate this cost is explained further in Section 2.3 of the Final RA, and the sources for the data used are provided in Section 3.1.3 of the Final RA.
Tables 5 and 6 calculate the annual costs to postsecondary institutions for proctoring additional time on exams requested by eligible students as a direct result of the ADA Amendments Act. The methodology used to calculate this cost is explained further in Section 2.4 of the Final RA, and the sources for the data used are provided in Section 3.1.4 of the Final RA.
Just as with postsecondary institutions, the costs to national testing entities from the revisions to the ADA Amendments Act will include three components:
• One-time cost of training staff on relevant impact of ADA Amendments Act;
• Annual cost of processing additional accommodation requests for extra exam time made as a direct result of the ADA Amendments Act; and
• Annual cost of proctoring additional time on exams as a direct result of the ADA Amendments Act.
The annual costs of processing additional accommodation requests and proctoring the extra exam time depends on the number of test takers who will request accommodations for extra exam time as a direct result of the ADA Amendments Act. Calculations for the three costs listed above plus the number of test takers who are eligible to receive and likely to request accommodations of extra exam time as a direct result of the ADA Amendments Act are presented below.
The annual one-time training cost for all national testing entities is presented in Table 7 below. The methodology used to calculate this cost is explained further in Section 2.1 of the Final RA, and the sources for the data used are provided in Section 3.2.1 of the Final RA.
The number of test takers who are now eligible to receive and likely to request extra time on national exams is calculated in Tables 8 and 9 below. The methodology used to calculate this number is explained further in Section 2.2 of the Final RA, and the sources for the data used are provided in Section 3.2.2 of the Final RA.
Table 10 illustrates the calculations of the annual cost to national testing entities for processing additional accommodation requests for extra exam time made as a direct result of the ADA Amendments Act. The methodology used to calculate this cost is explained further in Section 2.3 of the Final RA, and the sources for the data used are provided in Section 3.2.3 of the Final RA.
Finally, Tables 11 and 12 calculate the annual costs to national testing entities for allowing test takers to receive additional time on exams. Again, the cost here may be calculated as the opportunity cost of the seat occupied by the test taker for the additional hours of testing. However, because the seat cost per test taker was not available for this Final RA analysis, the additional time spent by a test proctor to oversee the exam is used as a proxy for the cost. The methodology used to calculate this cost is explained further in Section 2.4 of the Final RA, and the sources for the data used are provided in Section 3.2.4 of the Final RA.
Based on the calculations provided above, total costs to society for implementing the ADA Amendments Act revisions into the title II and title III regulations will range between $31.4 million and $47.1 million in the first year. The first year of costs will be higher than all subsequent years because the first year includes the one-time cost of training. Note that even the high end of this first-year cost range is well below the $100 million mark that signifies an “economically significant” regulation. The breakdown of total costs by entity is provided in Table 13 below.
Taking these costs over the next 10 years and discounting to present value terms at a rate of 7 percent, the total cost of implementing the ADA Amendments Act revisions is approximately $214.2 million over 10 years, as shown in Table 14 below.
The ADA Amendments Act revisions will allow eligible individuals with disabilities to receive additional time on exams, both for course-work exams at postsecondary institutions and standardized national examinations. Some national examinations are long and can last up to eight hours per test. Thus, when test takers request additional time on these longer exams, such requests will inevitably push the exam into an additional day.
As commenters pointed out in response to the Initial RA, there are costs associated with providing exams on an additional day. While there is no data to predict which exams will extend to an additional day, especially given that specific accommodations are determined individually, this Final RA assumes that exams that normally would take six hours or more to administer and be scheduled for one day may require an additional day of testing if the test taker seeks more time as an accommodation. To quantify the total costs of providing an additional day of testing for those individuals who would not previously have received this additional time, prior to the passage of the ADA Amendments Act, the following two costs are quantified:
While it appears that many national testing entities do not revise the content of exams that span an additional day, the exam format and materials can be affected by such an extension. For instance, computer-based exams are programmed to span a certain amount of time, allowing for timed break periods throughout. When more time is provided to take the exam, the exam must be reprogrammed to span the new amount of time, with planned breaks for the test taker. For paper-based exams, test booklets are often reprinted to allow one set of questions for one day of testing, and another set for the extra day of testing. This form of printing prevents test takers from going home and looking up the answers for the next set of questions.
Exams are delivered in different settings depending on the type of national exam. Some exams are delivered at testing centers where different types of exams are administered at once in the same room. In this case, the cost of an extra day of testing could be captured by the seat cost per test taker. Other exams are delivered to test takers exclusively taking that exam, and those exams are often administered in rooms rented out at a university, hotel, or other building. This cost could be captured by the room rental cost. The Final RA takes a conservative approach, using the room
Based on the calculations provided in Sections 4.2.1 and 4.2.2 of the Final RA, the total additional costs of providing an extra testing day to eligible test takers will likely range between $2.7 and $4.8 million per year. Table 15 adds this into the total costs in the first year to approximate the range of total costs to society from implementing the ADA Amendments Act revisions. For further information on the methodology, data, and assumptions used to analyze these potential additional costs for national testing entities, please refer to Section 4.2 of the Final RA.
The Department believes that the enactment of the ADA Amendments Act benefits millions of Americans, and the benefits to those individuals are non-quantifiable but nonetheless significant. The Department determined, however, that there was a group of individuals with disabilities who would be able to receive benefits in the form of increased access to accommodations in testing from postsecondary institutions and national testing entities, and that these benefits would be associated with specific costs to those institutions and entities, which are analyzed above.
With respect to specific benefits, in the first year, our analysis estimates that approximately 148,261 to 266,870 postsecondary students will take advantage of accommodations for extra exam time that they otherwise would not have received but for this rule. Over 10 years, approximately 1.6 million to 2.8 million students will benefit. An additional 802,196 to 1.4 million national exam test takers would benefit over that same 10 years (assuming that people take an exam one time only).
Some number of these individuals could be expected to earn a degree or license that they otherwise would not have as a result of the testing accommodations they are now eligible to receive as a direct result of the ADA Amendments Act. The Department was unable to find robust data to estimate the number of students who would receive a bachelor's degree or licenses after this rule goes into effect that would not otherwise have received one. However, extensive research has shown notably higher earnings for those with college degrees over those who do not have degrees. Estimates of this lifetime earnings vary, with some studies estimating an earning differential ranging from approximately $300,000 to $1 million.
In addition to these quantitative benefits, this rule will have significant non-quantifiable benefits to individuals with disabilities who, prior to the passage of the ADA Amendments Act and this rule, were denied the opportunity for equal access to an education or to become licensed in their chosen professions because of their inability to receive needed testing accommodations. As with all other improvements in access for individuals with disabilities, the ADA Amendments Act is expected to generate psychological benefits for covered individuals, including reduced stress and an increased sense of personal dignity and self-worth, as more individuals with disabilities are able to successfully complete tests and exams and more accurately demonstrate their academic skills and abilities. Some individuals will now be more likely to pursue a favored career path or educational pursuit, which will in turn lead to greater personal satisfaction.
Additional benefits to society arise from improved testing accessibility. For instance, if some persons with disabilities are able to increase their earnings, they may need less public support—either direct financial support or support from other programs or services. This, in turn, would lead to cross-sector benefits from resource savings arising from reduced social service agency outlays. Others, such as family members of individuals with disabilities, may also benefit from reduced financial and psychological pressure due to the greater independence and earnings of the family member whose disability is now covered by the ADA under the revised definition of “disability.”
In addition to the discrete group of individuals with learning disabilities and ADHD who will benefit from the changes made to the definition of “disability,” there is a class of individuals who will now fall within the nondiscrimination protections of the ADA if they are refused access to or participation in the facilities, programs,
In the NPRM, the Department stated that, based on its analysis, it “can certify that the rule will not have a significant economic impact on a substantial number of small entities.” The Department sought public comment on this proposed certification and its underlying analysis, including the costs to small entities, but received no public comments on these issues. The Attorney General has again reviewed this regulation in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), and by approving it hereby certifies that it will not have a significant economic impact on a substantial number of small entities for the reasons discussed more fully below.
First, the ADA Amendments Act took effect on January 1, 2009; all covered entities have been required to comply with the Act since that date and thus should be familiar with the requirements of the law. Second, the rule does not include reporting requirements and imposes no new recordkeeping requirements. Third, as shown above, the only title II and title III entities that would be significantly affected by the proposed changes to the ADA regulations are national testing entities and postsecondary institutions. The type of accommodations that most likely will be requested and required by those whose coverage has been clarified under titles II and III of ADA Amendments Act will be additional time in testing situations. While many of these national testing or postsecondary institutions are small businesses or small governmental entities, the costs associated with additional testing time are minimal; therefore, the Department believes the economic impact of this rule will be neither significant for these small entities nor disproportionate relative to the costs for larger entities.
The Department estimates that approximately 7,234 postsecondary institutions could be impacted based on data from the U.S. Department of Education National Center for Education Statistics.
The overall costs of this rule for postsecondary institutions were calculated based on the number of entities and number of postsecondary students affected. The cost of processing additional accommodation requests for extra exam time and the cost of additional time spent proctoring exams depend on the number of students. This methodology assumes that per-student costs are roughly the same for institutions of differing sizes. Because larger entities have more students on average than smaller ones, the Department used the proportion of the industry sub-group's revenues for small and large entities as a proxy for the number of students. Thus, using receipts for Junior Colleges (NAICS 6112) and Colleges, Universities, and Professional Schools (NAICS 6113) as a proxy for number of students, small postsecondary institutions are estimated to bear
In comparison to the number of small postsecondary entities, there are approximately 4,678 postsecondary institutions (64.7 percent of the 7,234) that would be considered larger entities, and these larger entities would incur $23.6 million in costs during the first year, which would average out to approximately $5,053 per large postsecondary institution during the first year. This $5,053 per large postsecondary institution during the first year is approximately 3.1 times higher than the cost that would be incurred by small postsecondary institutions during that same time.
In addition to postsecondary institutions, some national testing entities would also be impacted. The Department used data on Educational Test Development and Evaluation Services (NAICS 6117102)
Small entity establishments in the Educational Test Development and Evaluation Services industry group account for 24.8 percent of that industry's receipts. If receipts are used as a proxy for number of test takers in a manner similar to that described above for postsecondary institutions, then small national testing entities can be expected to bear 24.8 percent of the industry's $9.49 million first-year costs of processing additional accommodation requests for extra exam time and additional time spent proctoring exams—or approximately $2.35 million. Additionally, national testing entities are expected to incur a fixed cost for additional training of $1,371 per entity. Thus, for the approximately 923 small national testing entities, total costs in the first year are estimated to average $3,918 each. Average revenue for these entities is $780,264. The cost is 0.50 percent of their revenue. Therefore, the costs will not be substantial for these small entities.
In comparison to the number of small testing entities, approximately 474 national testing center establishments (33.9 percent of the 1,397) would be considered larger entities, and they would incur $7.79 million in costs during the first year, which would average out to approximately $16,440 per large national testing center establishment during the first year. This $16,440 per large national testing center establishment is approximately 4.2 times as high as the cost that would be incurred by small national testing center establishments during that same time.
As explained above, the Department estimates that approximately 2,556 small postsecondary establishments and 923 small national testing establishments would be impacted by this rule, for a total of approximately 3,479 small business establishments. The estimates were based on average estimates for all entities, irrespective of size. The Department notes that the average first-year cost estimates presented above for small entities are higher than the first-year cost estimates presented in the NPRM because the Department's estimates for the initial training costs (which will be incurred during the first year) are now higher based on public comment and further research and analysis conducted by the Department. However, the overall costs of this rule for small entities over the 10-year period are lower because the Department's final overall cost estimates in the Final RA are lower as a result of refinements made to the analysis in response to public comment and based on further research conducted by the Department.
Based on the above analysis, the Attorney General can certify that the rule will not have a significant economic impact on a substantial number of small entities.
Executive Order 13132 of August 4, 1999, Federalism, directs that, to the extent practicable and permitted by law, an agency shall not promulgate any regulation that has federalism implications, that imposes substantial direct compliance costs on State and local governments, that is not required by statute, or that preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. Because this rule does not have federalism implications as defined in the Executive Order, does not impose direct compliance costs on State and local governments, is required by statute, and does not preempt State law within the meaning of the Executive Order, the Department has concluded that compliance with the requirements of section 6 is not necessary.
The Department makes every effort to promote clarity and transparency in its rulemaking. In any regulation, there is a tension between drafting language that is simple and straightforward and drafting language that gives full effect to issues of legal interpretation. The Department operates a toll-free ADA Information Line (800) 514-0301 (voice); (800) 514-0383 (TTY) that the public is welcome to call to obtain assistance in understanding anything in this final rule.
This final rule does not contain any new or revised “collection[s] of information” as defined by the
Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1503(2), excludes from coverage under that Act any proposed or final Federal regulation that “establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability.” Accordingly, this rulemaking is not subject to the provisions of the Unfunded Mandates Reform Act.
Administrative practice and procedure, Buildings and facilities, Business and industry, Civil rights, Communications equipment, Individuals with disabilities, Reporting and recordkeeping requirements, State and local governments.
By the authority vested in me as Attorney General by law, including 28 U.S.C. 509 and 510, 42 U.S.C. 12134, 12186, and 12205a, and Public Law 110-325, 122 Stat. 3553 (2008), parts 35 and 36 of title 28 of the Code of Federal Regulations are amended as follows:
5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, and 12205a.
(a)
(b)
(a)(1)
(i) A physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(ii) A record of such an impairment; or
(iii) Being regarded as having such an impairment as described in paragraph (f) of this section.
(2)
(ii) An individual may establish coverage under any one or more of the three prongs of the definition of “disability” in paragraph (a)(1) of this section, the “actual disability” prong in paragraph (a)(1)(i) of this section, the “record of” prong in paragraph (a)(1)(ii) of this section, or the “regarded as” prong in paragraph (a)(1)(iii) of this section.
(iii) Where an individual is not challenging a public entity's failure to provide reasonable modifications under § 35.130(b)(7), it is generally unnecessary to proceed under the “actual disability” or “record of” prongs, which require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. In these cases, the evaluation of coverage can be made solely under the “regarded as” prong of the definition of “disability,” which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. An individual may choose, however, to proceed under the “actual disability” or “record of” prong regardless of whether the individual is challenging a public entity's failure to provide reasonable modifications.
(b)(1)
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or
(ii) Any mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability.
(2)
(3)
(c)(1)
(i) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working; and
(ii) The operation of a
(2)
(ii) Whether an activity is a
(d)
(i) The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard.
(ii) The primary object of attention in cases brought under title II of the ADA should be whether public entities have complied with their obligations and whether discrimination has occurred, not the extent to which an individual's impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment substantially limits a major life activity should not demand extensive analysis.
(iii) An impairment that substantially limits one major life activity does not need to limit other major life activities in order to be considered a substantially limiting impairment.
(iv) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
(v) An impairment is a disability within the meaning of this part if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment does not need to prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.
(vi) The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for substantially limits applied prior to the ADA Amendments Act.
(vii) The comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence. Nothing in this paragraph (d)(1) is intended, however, to prohibit or limit the presentation of scientific, medical, or statistical evidence in making such a comparison where appropriate.
(viii) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity. Ordinary eyeglasses or contact lenses are lenses that are intended to fully correct visual acuity or to eliminate refractive error.
(ix) The six-month “transitory” part of the “transitory and minor” exception in paragraph (f)(2) of this section does not apply to the “actual disability” or “record of” prongs of the definition of “disability.” The effects of an impairment lasting or expected to last less than six months can be substantially limiting within the meaning of this section for establishing an actual disability or a record of a disability.
(2)
(ii) Applying these principles, the individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage under paragraph (a)(1)(i) of this section (the “actual disability” prong) or paragraph (a)(1)(ii) of this section (the “record of” prong). Given their inherent nature, these types of impairments will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity. Therefore, with respect to these types of impairments, the necessary individualized assessment should be particularly simple and straightforward.
(iii) For example, applying these principles it should easily be concluded that the types of impairments set forth in paragraphs (d)(2)(iii)(A) through (K) of this section will, at a minimum, substantially limit the major life activities indicated. The types of impairments described in this paragraph may substantially limit additional major life activities (including major bodily functions) not explicitly listed in paragraphs (d)(2)(iii)(A) through (K).
(A) Deafness substantially limits hearing;
(B) Blindness substantially limits seeing;
(C) Intellectual disability substantially limits brain function;
(D) Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function;
(E) Autism substantially limits brain function;
(F) Cancer substantially limits normal cell growth;
(G) Cerebral palsy substantially limits brain function;
(H) Diabetes substantially limits endocrine function;
(I) Epilepsy, muscular dystrophy, and multiple sclerosis each substantially limits neurological function;
(J) Human Immunodeficiency Virus (HIV) infection substantially limits immune function; and
(K) Major depressive disorder, bipolar disorder, post-traumatic stress disorder, traumatic brain injury, obsessive compulsive disorder, and schizophrenia each substantially limits brain function.
(3)
(ii) Consideration of facts such as condition, manner, or duration may include, among other things, consideration of the difficulty, effort or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; or the way an impairment affects the operation of a major bodily function. In addition, the non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual's impairment substantially limits a major life activity.
(iii) In determining whether an individual has a disability under the “actual disability” or “record of” prongs of the definition of “disability,” the focus is on how a major life activity is substantially limited, and not on what outcomes an individual can achieve. For example, someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in one or more major life activities, including, but not limited to, reading, writing, speaking, or
(iv) Given the rules of construction set forth in this section, it may often be unnecessary to conduct an analysis involving most or all of the facts related to condition, manner, or duration. This is particularly true with respect to impairments such as those described in paragraph (d)(2)(iii) of this section, which by their inherent nature should be easily found to impose a substantial limitation on a major life activity, and for which the individualized assessment should be particularly simple and straightforward.
(4)
(i) Medication, medical supplies, equipment, appliances, low-vision devices (defined as devices that magnify, enhance, or otherwise augment a visual image, but not including ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aid(s) and cochlear implant(s) or other implantable hearing devices, mobility devices, and oxygen therapy equipment and supplies;
(ii) Use of assistive technology;
(iii) Reasonable modifications or auxiliary aids or services as defined in this regulation;
(iv) Learned behavioral or adaptive neurological modifications; or
(v) Psychotherapy, behavioral therapy, or physical therapy.
(e)
(2)
(3)
(f)
(1) Except as set forth in paragraph (f)(2) of this section, an individual is “regarded as having such an impairment” if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity, even if the public entity asserts, or may or does ultimately establish, a defense to the action prohibited by the ADA.
(2) An individual is not “regarded as having such an impairment” if the public entity demonstrates that the impairment is, objectively, both “transitory” and “minor.” A public entity may not defeat “regarded as” coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the public entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment), objectively, both “transitory” and “minor.” For purposes of this section, “transitory” is defined as lasting or expected to last six months or less.
(3) Establishing that an individual is “regarded as having such an impairment” does not, by itself, establish liability. Liability is established under title II of the ADA only when an individual proves that a public entity discriminated on the basis of disability within the meaning of title II of the ADA, 42 U.S.C. 12131-12134.
(g)
(1) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or
(3) Psychoactive substance use disorders resulting from current illegal use of drugs.
(b) * * *
(7)(i) A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
(ii) A public entity is not required to provide a reasonable modification to an individual who meets the definition of “disability” solely under the “regarded as” prong of the definition of “disability” at § 35.108(a)(1)(iii).
(i) Nothing in this part shall provide the basis for a claim that an individual without a disability was subject to discrimination because of a lack of disability, including a claim that an individual with a disability was granted a reasonable modification that was denied to an individual without a disability.
This appendix contains guidance providing a section-by-section analysis of the revisions to 28 CFR parts 35 and 36 published on August 11, 2016.
This section provides a detailed description of the Department's changes to the meaning and interpretation of the definition of “disability” in the title II and title III regulations, the reasoning behind those changes, and responses to public comments received on these topics.
Sections 35.101 and 36.101 set forth the purpose of the ADA title II and title III regulations. In the NPRM, the Department proposed revising these sections by adding references to the ADA Amendments Act in renumbered §§ 35.101(a) and 36.101(a) and by adding new §§ 35.101(b) and 36.101(b), which explain that the ADA is intended to have broad coverage and that the definition of “disability” shall be construed broadly. The proposed language in paragraph (b) stated that the primary purpose of the ADA Amendments Act is to make it easier for
Many commenters supported inclusion of this information as reiterating the statutory language evincing Congress' intention “to restore a broad definition of `disability' under the ADA. . . .” Several commenters asked the Department to delete the last sentence in §§ 35.101(b) and 36.101(b), arguing that inclusion of this language is inconsistent with the individualized assessment required under the ADA. Some of these commenters acknowledged, however, that this language is drawn directly from the “Purposes” of the ADA Amendments Act.
Some commenters recommended that the Department add a third paragraph to these sections expressly stating that “not all impairments are covered disabilities.” These commenters contended that “[t]here is a common misperception that having a diagnosed impairment automatically triggers coverage under the ADA.” While the Department does not agree that such a misperception is common, it agrees that it would be appropriate to include such a statement in the final rule, and has added it to the rules of construction explaining the phrase “substantially limits” at §§ 35.108(d)(1)(v) and 36.105(d)(1)(v).
The current title II and title III regulations include the definition of “disability” in regulatory sections that contain all enumerated definitions in alphabetical order. Given the expanded length of the definition of “disability” and the number of additional subsections required in order to give effect to the requirements of the ADA Amendments Act, the Department, in the NPRM, proposed moving the definition of “disability” from the general definitional sections at §§ 35.104 and 36.104 to a new section in each regulation, §§ 35.108 and 36.105, respectively.
The Department received no public comments in response to this proposal and the definition of “disability” remains in its own sections in the final rule.
In the ADA, Congress originally defined “disability” as “(A) a physical or mental impairment that substantially limits one or more major life activities of an individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Public Law 101-336, sec. 3 (1990). This three-part definition—the “actual,” “record of,” and “regarded as” prongs—was modeled after the definition of “handicap” found in the Rehabilitation Act of 1973. H.R. Rep. No. 110-730, pt. 2, at 6 (2008). The Department's 1991 title II and title III ADA regulations reiterate this three-part basic definition as follows:
Disability means, with respect to an individual,
• a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
• a record of such an impairment; or
• being regarded as having such an impairment.
While the ADA Amendments Act did not amend the basic structure or terminology of the original statutory definition of “disability,” the Act revised the third prong to incorporate by reference two specific provisions construing this prong. 42 U.S.C. 12102(3)(A)-(B). The first statutory provision clarified the scope of the “regarded as” prong by explaining that “[a]n individual meets the requirement of `being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. 12102(3)(A). The second statutory provision provides an exception to the “regarded as” prong for impairments that are both transitory and minor. A transitory impairment is defined as “an impairment with an actual or expected duration of 6 months or less.” 42 U.S.C. 12102(3)(B). In the NPRM, the Department proposed revising the “regarded as” prong in §§ 35.108(a)(1)(iii) and 36.105(a)(1)(iii) to reference the regulatory provisions that implement 42 U.S.C. 12102(3). The NPRM proposed, at §§ 35.108(f) and 36.105(f), that “regarded as” having an impairment would mean that the individual has been subjected to an action prohibited by the ADA because of an actual or perceived impairment that is not both “transitory and minor.”
The first proposed sentence directed that the meaning of the “regarded as prong” shall be understood in light of the requirements in §§ 35.108(f) and 36.105(f). The second proposed sentence merely provided a summary restatement of the requirements of §§ 35.108(f) and 36.105(f). The Department received no comments in response to this proposed language. Upon consideration, however, the Department decided to retain the first proposed sentence but omit the second as superfluous. Because the first sentence explicitly incorporates and directs the public to the requirements set out in §§ 35.108(f) and 36.105(f), the Department believes that summarizing those requirements here is unnecessary. Accordingly, in the final rule, §§ 35.108(a)(1)(iii) and 36.105(a)(1)(iii) simply reference paragraph (f) of the respective section.
In the NPRM, the Department proposed §§ 35.108(a)(2) and 36.105(a)(2), which set forth rules of construction on how to apply the definition of “disability.” Proposed §§ 35.108(a)(2)(i) and 36.105(a)(2)(i) state that an individual may establish coverage under any one or more of the prongs in the definition of “disability”—the “actual disability” prong in paragraph (a)(1)(i), the “record of” prong in paragraph (a)(1)(ii) or the “regarded as” prong in paragraph (a)(1)(iii).
To be covered under the ADA, an individual must satisfy only one prong. The term “actual disability” is used in these rules of construction as shorthand terminology to refer to an impairment that substantially limits a major life activity within the meaning of the first prong of the definition of “disability.”
Proposed §§ 35.108(a)(2)(ii) and 36.105(a)(2)(ii) were intended to incorporate Congress's expectation that consideration of coverage under the “actual disability” and “record of disability” prongs of the definition of “disability” will generally be unnecessary except in cases involving requests for reasonable modifications.
The Department received no comments objecting to these proposed rules of construction. The final rule retains these provisions but renumbers them as paragraphs (ii) and (iii) of §§ 35.108(a)(2) and 36.105(a)(2) and replaces the reference to “covered entity” in the title III regulatory text with “public accommodation.”
The Department has added a third rule of construction at the beginning of §§ 35.108(a)(2) and 36.105(a)(2), numbered §§ 35.108(a)(2)(i) and 36.105(a)(2)(i). Closely tracking the amended statutory language, these provisions state that “[t]he definition of disability shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.”
The ADA Amendments Act did not change the meaning of the term “physical or mental impairment.” Thus, in the NPRM, the Department proposed only minor modifications to the general regulatory definitions for this term at §§ 35.108(b)(1)(i) and 36.105(b)(1)(i) by adding examples of two additional body systems—the immune system and the circulatory system—that may be affected by a physical impairment.
In addition, the Department proposed adding “dyslexia” to §§ 35.108(b)(2) and 36.105(b)(2) as an example of a specific learning disability that falls within the meaning of the phrase “physical or mental impairment.” Although dyslexia is a specific diagnosable learning disability that causes difficulties in reading, unrelated to intelligence and education, the Department became aware that some covered entities mistakenly believe that dyslexia is not a clinically diagnosable impairment. Therefore, the Department sought public comment regarding its proposed inclusion of a reference to dyslexia in these sections.
The Department received a significant number of comments in response to this proposal. Many commenters supported inclusion of the reference to dyslexia. Some of these commenters also asked the Department to include other examples of specific learning disabilities such as dysgraphia
Another commenter asked the Department to add a specific definition of dyslexia to the regulatory text itself. The Department declines to do so as it does not give definitions for any other physical or mental impairment in the regulations.
Other commenters recommended that the Department add ADHD to the list of examples of “physical or mental impairments” in §§ 35.108(b)(2) and 36.105(b)(2).
Other commenters asked the Department to include arthritis, neuropathy, and other examples of physical or mental impairments that could substantially impair a major life activity. The Department declines to add any other examples because, while it notes the value in clarifying the existence of impairments such as ADHD, it also recognizes that the regulation need not elaborate an inclusive list of all impairments, particularly those that are very prevalent, such as arthritis, or those that may be symptomatic of other underlying impairments already referenced in the list, such as neuropathy, which may be caused by cancer or diabetes. The list is merely illustrative and not exhaustive. The regulations clearly state that the phrase “physical or mental impairment” includes, but is not limited to” the examples provided. No negative implications should be drawn from the omission of any specific impairment in §§ 35.108(b) and 36.105(b).
The Department notes that it is important to distinguish between conditions that are impairments and physical, environmental, cultural, or economic characteristics that are not impairments. The definition of the term “impairment” does not include physical characteristics such as eye color, hair color, or left-handedness, or height, weight, or muscle tone that are within “normal” range. Moreover, conditions that are not themselves physiological disorders, such as pregnancy, are not impairments. However, even if an underlying condition or characteristic is not itself a physical or mental impairment, it may give rise to a physical or mental impairment that substantially limits a major life activity. In such a case, an individual would be able to establish coverage under the ADA. For example, while pregnancy itself is not an impairment, a pregnancy-related impairment that substantially limits a major life activity will constitute a disability under the first prong of the definition.
Prior to the passage of the ADA Amendments Act, the ADA did not define “major life activities,” leaving delineation of illustrative examples to agency regulations. Paragraph 2 of the definition of “disability” in the Department's current title II and title III regulations at 28 CFR 35.104 and 36.104 states that “major life activities” means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
The ADA Amendments Act significantly expanded the range of major life activities by directing that “major” be interpreted in a more expansive fashion, by adding a significant new category of major life activities, and by providing non-exhaustive
In the NPRM, at §§ 35.108(c) and 36.105(c), the Department proposed revisions of the title II and title III lists of examples of major life activities (other than the operations of a major bodily function) to incorporate all of the statutory examples, as well as to provide additional examples included in the EEOC title I final regulation—reaching, sitting, and interacting with others.
A number of commenters representing persons with disabilities or the elderly recommended that the Department add a wide variety of other activities to this first list. Some commenters asked the Department to include references to test taking, writing, typing, keyboarding, or executive function.
On consideration of the legislative history and the relevant public comments, the Department decided to include “writing” as an additional example in its non-exhaustive list of examples of major life activities in the final rule. The Department notes Congress repeatedly stressed that writing is one of the major life activities that is often affected by a covered learning disability.
Other than “writing,” the Department declines to add additional examples of major life activities to these provisions in the final rule. This list is illustrative, and the Department believes that it is neither necessary nor possible to list every major life activity. Moreover, the Department notes that many of the commenters' suggested inclusions implicate life activities already included on the list. For example, although, as commenters pointed out, some courts have concluded that test taking is a major life activity,
The commenters' suggested additions also implicate the operations of various bodily systems that may already be recognized as major life activities.
In the NPRM, the Department proposed revising the regulatory definitions of disability at §§ 35.108(c)(1)(ii) and 36.105(c)(1)(ii) to make clear that the operations of major bodily functions are major life activities, and to include a non-exhaustive list of examples of major bodily functions, consistent with the language of the ADA as amended. Because the statutory list is non-exhaustive, the Department also proposed further expanding the list to include the following examples of major bodily functions: The functions of the special sense organs and skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal systems. These six major bodily functions also are specified in the EEOC title I final regulation. 29 CFR 1630.2(i)(1)(i).
One commenter objected to the Department's inclusion of additional examples of major life activities in both these lists, suggesting that the Department include only those activities and conditions specifically set forth in the ADA as amended. The Department believes that providing other examples of major life activities, including major bodily functions, is within the Attorney General's authority to both interpret titles II and III of the ADA and promulgate implementing regulations and that these examples provide helpful guidance to the public. Therefore, the Department declines to limit its lists of major life activities to those specified in the statute. Further, the Department notes that even the expanded lists of major life activities and major bodily functions are illustrative and non-exhaustive. The absence of a particular life activity or bodily function from the list should not create a negative implication as to whether such activity or function constitutes a major life activity under the statute or the implementing regulation.
In the NPRM, proposed §§ 35.108(c)(2) and 36.105(c)(2) set out two specific principles applicable to major life activities: “[i]n determining other examples of major life activities, the term `major' shall not be interpreted strictly to create a demanding standard for disability,” and “[w]hether an activity is a `major life activity' is not determined by reference to whether it is of `central importance to daily life.' ” The proposed language furthered a main purpose of the ADA Amendments Act—to reject the standards enunciated by the Supreme Court in
The Department did not receive any comments objecting to its proposed language. In the final rule, the Department retained these principles but has numbered each principle individually and deemed them “rules of construction” because they are intended to inform the determination of whether a particular activity is a major life activity.
In accordance with Congress's overarching directive to construe the term “disability” broadly,
Several commenters on these provisions supported the Department's proposal to include these rules of construction, noting that they were in keeping with both the statutory language and Congress's intent to broaden the definition of “disability” and restore expansive protection under the ADA. Some of these commenters stated that, even after the passage of the ADA Amendments Act, some covered entities continued to apply a narrow definition of “disability.”
Other commenters expressed concerns that the proposed language would undermine congressional intent by weakening the meaning of the word “substantial.” One of these commenters asked the Department to define the term “substantially limited” to include an element of materiality, while other commenters objected to the breadth of these provisions and argued that it would make the pool of people who might claim disabilities too large, allowing those without substantial limitations to be afforded protections under the law. Another commenter expressed concern about the application of the regulatory language to the diagnosis of learning disabilities and ADHD.
The Department considered all of these comments and declines to provide a definition of the term “substantially limits” or make any other changes to these provisions in the final rule. The Department notes that Congress considered and expressly rejected including language defining the term “substantially limits”: “We have concluded that adopting a new, undefined term that is subject to widely disparate meanings is not the best way to achieve the goal of ensuring consistent and appropriately broad coverage under this Act. The resulting need for further judicial scrutiny and construction will not help move the focus from the threshold issue of disability to the primary issue of discrimination.” 154 Cong. Rec. S8441. (daily ed. Sept. 16, 2008) (Statement of the Managers).
The Department believes that the nine rules of construction interpreting the term “substantially limits” provide ample guidance on determining whether an impairment substantially limits a major life activity and are sufficient to ensure that covered entities will be able to understand and apply Congress's intentions with respect to the breadth of the definition of “disability.”
Moreover, the commenters' arguments that these provisions would undermine congressional intent are unsupported. To the contrary, Congress clearly intended the ADA Amendments Act to expand coverage: “The managers have introduced the ADA Amendments Act of 2008 to restore the proper balance and application of the ADA by clarifying and broadening the definition of disability, and to increase eligibility for the protections of the ADA. It is our expectation that because this bill makes the definition of disability more generous, some people who were not covered before will now be covered.” 154 Cong. Rec. S8441 (daily ed. Sept. 16, 2008) (Statement of the Managers).
The Department has also considered the comments expressed about the interplay between the proposed regulatory language and the diagnosis of learning disabilities and ADHD disorders. The Department believes that the revised definition of “disability,” including, in particular, the provisions construing “substantially limits,” strikes the appropriate balance to effectuate Congress's intent when it passed the ADA Amendments Act, and will not modify its regulatory language in response to these comments.
In the ADA Amendments Act, Congress directed that rules of construction should ensure that “substantially limits” is construed in accordance with the findings and purposes of the statute.
In keeping with Congress's intent and the language of the ADA Amendments Act, the rules of construction at proposed §§ 35.108(d)(1)(iii) and 36.105(d)(1)(iii) make clear that the primary object of attention in ADA cases should be whether public or other covered entities have complied with their obligations and whether discrimination has occurred, not the extent to which an individual's impairment substantially limits a major life activity. In particular, the threshold issue of whether an impairment substantially limits a major life activity should not demand extensive analysis.
A number of commenters expressed support for these rules of construction, noting that they reinforced Congress's intent in ensuring that the primary focus will be on compliance. Several commenters objected to the use of the word “cases” in these provisions, stating that it lacked clarity. The word “cases” tracks the language of the ADA Amendments Act and the Department declines to change the term.
A few commenters objected to these provisions because they believed that the language would be used to supersede or otherwise change the required analysis of requests for reasonable modifications or testing accommodations.
The Department retained the language of these rules of construction in the final rule except that in the title III regulatory text it has changed the reference from “covered entity” to “public accommodation.” The Department also renumbered these provisions as §§ 35.108(d)(1)(ii) and 36.105(d)(1)(ii).
Proposed §§ 35.108(d)(1)(viii) and 36.105(d)(1)(viii) stated that “[a]n impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.”
The Department received one comment specifically supporting this provision and none opposing it. The Department is retaining this language in the final rule although it is renumbered and is found at §§ 35.108(d)(1)(iii) and 36.105(d)(1)(iii).
The ADA as amended provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”
42 U.S.C. 12102(4)(D). In the NPRM, the Department proposed §§ 35.108(d)(1)(vii) and 36.105(d)(1)(vii) to directly incorporate this language. These provisions are intended to reject the reasoning of court decisions concluding that certain individuals with certain conditions—such as epilepsy or post traumatic stress disorder—were not protected by the ADA because their conditions were episodic or intermittent. The legislative history provides that “[t]his . . . rule of construction thus rejects the reasoning of the courts in cases like
[57 F. Supp. 2d 448, 453 (S.D. Tex. 1999)] where the court found that the plaintiff's epilepsy, which resulted in short seizures during which the plaintiff was unable to speak and experienced tremors, was not sufficiently limiting, at least in part because those seizures occurred episodically. It similarly rejects the results reached in cases [such as
Some examples of impairments that may be episodic include hypertension, diabetes, asthma, major depressive disorder, bipolar disorder, and schizophrenia. The fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity. For example, a person with post-traumatic stress disorder who experiences intermittent flashbacks to traumatic events is substantially limited in brain function and thinking.
The Department received three comments in response to these provisions. Two commenters supported this provision and one commenter questioned about how school systems should provide reasonable modifications to students with disabilities that are episodic or in remission. As discussed elsewhere in this guidance, the determination of what is an appropriate modification is separate and distinct from the determination of whether an individual is covered by the ADA, and the Department will not modify its regulatory language in response to this comment.
In the legislative history of the ADA Amendments Act, Congress explicitly recognized that it had always intended that determinations of whether an impairment substantially limits a major life activity should be based on a comparison to most people in the population. The Senate Managers Report approvingly referenced the discussion of this requirement in the committee report from 1989.
Consistent with its longstanding intent, Congress directed, in the ADA Amendments Act, that disability determinations “should not demand extensive analysis” and that impairments do not need to rise to the level of “prevent[ing] or severely restrict[ing] the individual from doing activities that are of central importance to most people's daily lives.”
Accordingly, proposed §§ 35.108(d)(1)(ii) and 36.105(d)(1)(ii) state that an impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. However, an impairment does not need to prevent, or significantly or severely restrict, an individual from performing a major life activity in order to be substantially limiting. The proposed language in the NPRM was rooted in the corrective nature of the ADA Amendments Act and its explicit rejection of the strict standards imposed under
The Department received several comments on these provisions, none of which recommended modification of the regulatory language. A few commenters raised concerns that are further addressed in the “Condition, manner, or duration” section below, regarding the Department's inclusion in the NPRM preamble of a reference to possibly using similarly situated individuals as the basis of comparison. The Department has removed this discussion and clarified that it does not endorse reliance on similarly situated individuals to demonstrate substantial limitations. For example, the Department recognizes that when determining whether an elderly person is substantially limited in a major life activity, the proper comparison is most people in the general population, and not similarly situated elderly individuals. Similarly, someone with ADHD should be compared to most people in the general population, most of whom do not have ADHD. Other commenters expressed interest in the possibility that, in some cases, evidence to support an assertion that someone has an impairment might simultaneously be used to demonstrate that the impairment is substantially limiting. These commenters approvingly referenced the EEOC's interpretive guidance for its ADA Amendments Act regulation, which provided an example of an individual with a learning disability.
Finally, the Department added an explicit statement recognizing that not every impairment will constitute a disability within the meaning of the section. This language echoes the Senate Statement of Managers, which clarified that: “[N]ot every individual with a physical or mental impairment is covered by the first prong of the definition of disability in the ADA. An impairment that does not substantially limit a major life activity is not a disability under this prong.” 154 Cong. Rec. S8841 (daily ed. Sept. 16, 2008) (Statement of the Managers).
In the NPRM, proposed §§ 35.108(d)(1)(iv) and 36.105(d)(1)(iv) state that determining
These rules of construction reflect Congress's concern that prior to the adoption of the ADA Amendments Act, courts were using too high a standard to determine whether an impairment substantially limited a major life activity.
The Department received no comments on these provisions. The text of these provisions is unchanged in the final rule, although they have been renumbered as §§ 35.108(d)(1)(vi) and 36.105(d)(1)(vi).
In the NPRM, the Department proposed at §§ 35.108(d)(1)(v) and 36.105(d)(1)(v) rules of construction making clear that the comparison of an individual's performance of a major life activity to that of most people in the general population usually will not require scientific, medical, or statistical evidence. However, this rule is not intended to prohibit or limit the use of scientific, medical, or statistical evidence in making such a comparison where appropriate.
These rules of construction reflect Congress's rejection of the demanding standards of proof imposed upon individuals with disabilities who tried to assert coverage under the ADA prior to the adoption of the ADA Amendments Act. In passing the Act, Congress rejected the idea that the disability determination should be “an onerous burden for those seeking accommodations or modifications.”
The Department received several comments in support of these provisions and a number of comments opposing all or part of them. One commenter representing individuals with disabilities expressed support for the proposed language, noting that “[m]any people with disabilities have limited resources and requiring them to hire an expert witness to confirm their disability would pose an insurmountable barrier that could prevent them from pursuing their ADA cases.”
Commenters representing testing entities objected to this language arguing that they needed scientific, medical, or statistical evidence in order to determine whether an individual has a learning disability or ADHD. These commenters argued that, unlike other disabilities, assessment of learning disabilities and ADHD require scientific, medical, or statistical evidence because such disabilities have no overt symptoms, cannot be readily observed, and lack medical or scientific verifiability. One commenter stated that the proposed language “favor[s] expedience over evidence-based guidance.”
In opposing these provisions, these commenters appear to conflate proof of the existence of an impairment with the analysis of how an impairment substantially limits a major life activity. These provisions address only how to evaluate whether an impairment substantially limits a major life activity, and the Department's proposed language appropriately reflects Congress's intent to ensure that individuals with disabilities are not precluded from seeking protection under the ADA because of overbroad, burdensome, and generally unnecessary evidentiary requirements. Moreover, the Department disagrees with the commenters' suggestion that an individual with ADHD or a specific learning disability can never demonstrate how the impairment substantially limits a major life activity without scientific, medical, or statistical evidence. Scientific, medical, or statistical evidence usually will not be necessary to determine whether an individual with a disability is substantially limited in a major life activity. However, as the rule notes, such evidence may be appropriate in some circumstances.
One commenter suggested that the words “where appropriate” be deleted from these provisions in the final rule out of concern that they may be used to preclude individuals with disabilities from proffering scientific or medical evidence in support of a claim of coverage under the ADA. The Department disagrees with the commenter's reading of these provisions. Congress recognized that some people may choose to support their claim by presenting scientific or medical evidence and made clear that “plaintiffs should not be constrained from offering evidence needed to establish that their impairment is substantially limiting.”
Finally, although the NPRM did not propose any changes with respect to the title III regulatory requirements applicable to the provision of testing accommodations at 28 CFR 36.309, one commenter requested revisions to § 36.309 to acknowledge the changes to regulatory language in the definition of “disability.” Another commenter noted that the proposed changes to the regulatory definition of “disability” warrant new agency guidance on how the ADA applies to requests for testing accommodations.
The Department does not consider it appropriate to include provisions related to testing accommodations in the definitional sections of the ADA regulations. The determination of disability, and thus coverage under the ADA, is governed by the statutory and regulatory definitions and the related rules of construction. Those provisions do not speak to what testing accommodations an individual with a disability is entitled to under the ADA nor to the related questions of what a testing entity may request or require from an individual with a disability who seeks testing accommodations. Testing entities' substantive obligations are governed by 42 U.S.C. 12189 and the implementing regulation at 28 CFR 36.309. The implementing regulation clarifies that private entities offering covered examinations need to make sure that any request for required documentation is reasonable and limited to the need for the requested modification, accommodation, or auxiliary aid or service. Furthermore, when considering requests for modifications, accommodations, or auxiliary aids or services, the entity should give considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received in similar testing situations or provided in response to an Individualized Education Program (IEP) provided under the IDEA or a plan describing services provided under section 504 of the Rehabilitation Act of 1973 (often referred as a Section 504 Plan).
Contrary to the commenters' suggestions, there is no conflict between the regulation's definitional provisions and title III's testing accommodation provisions. The first addresses the core question of who is covered under the definition of “disability,” while the latter sets forth requirements related to documenting the need for particular testing accommodations. To the extent that testing entities are urging conflation of the analysis for establishing disability with that for determining required testing accommodations, such an approach would contradict the clear delineation in the statute between the determination of disability and the obligations that ensue.
Accordingly, in the final rule, the text of these provisions is largely unchanged, except that the provisions are renumbered as §§ 35.108(d)(1)(vii) and 36.108(d)(1)(vii), and the Department added “the presentation of,” in the second sentence, which was included in the corresponding provision of the EEOC final rule.
The ADA as amended expressly prohibits any consideration of the ameliorative effects
In the NPRM, the Department proposed §§ 35.108(d)(2)(vi) and 36.105(d)(2)(vi), which tracked the statutory language regarding consideration of mitigating measures. These provisions stated that the ameliorative effects of mitigating measures should not be considered when determining whether an impairment substantially limits a major life activity. However, the beneficial effects of ordinary eyeglasses or contact lenses should be considered when determining whether an impairment substantially limits a major life activity. Ordinary eyeglasses or contact lenses refer to lenses that are intended to fully correct visual acuity or to eliminate refractive errors. Proposed §§ 35.108(d)(4) and 36.105(d)(4), discussed below, set forth examples of mitigating measures.
A number of commenters agreed with the Department's proposed language and no commenters objected. Some commenters, however, asked the Department to add language to these sections stating that, although the ameliorative effects of mitigating measures may not be considered in determining whether an individual has a covered disability, they may be considered in determining whether an individual is entitled to specific testing accommodations or reasonable modifications. The ADA Amendments Act revised the definition of “disability” and the Department agrees that the Act's prohibition on assessing the ameliorative effects of mitigating measures applies only to the determination of whether an individual meets the definition of “disability.” The Department declines to add the requested language, however, because it goes beyond the scope of this rulemaking by addressing ADA requirements that are not related to the definition of “disability.” These rules of construction do not apply to the requirements to provide reasonable modifications under §§ 35.130(b)(7) and 36.302 or testing accommodations under § 36.309 in the title III regulations. The Department disagrees that further clarification is needed at this point and declines to modify these provisions except that they are now renumbered as §§ 35.108(d)(1)(viii) and § 36.105(d)(1)(viii).
The Department notes that in applying these rules of construction, evidence showing that an impairment would be substantially limiting in the absence of the ameliorative effects of mitigating measures could include evidence of limitations that a person experienced prior to using a mitigating measure or evidence concerning the expected course of a particular disorder absent mitigating measures.
The determination of whether an individual's impairment substantially limits a major life activity is unaffected by an individual's choice to forgo mitigating measures. For individuals who do not use a mitigating measure (including, for example, medication or auxiliary aids and services that might alleviate the effects of an impairment), the availability of such measures has no bearing on whether the impairment substantially limits a major life activity. The limitations posed by the impairment on the individual and any negative (non-ameliorative) effects of mitigating measures will serve as the foundation for a determination of whether an impairment is substantially limiting. The origin of the impairment, whether its effects can be mitigated, and any ameliorative effects of mitigating measures that are employed may not be considered in determining if the impairment is substantially limiting.
In §§ 35.108(d)(1)(ix) and 36.105(d)(1)(ix), the NPRM proposed rules of construction noting that the six-month “transitory” part of the “transitory and minor” exception does not apply to the “actual disability” or “record of” prongs of the definition of “disability.” Even if an impairment may last or is expected to last six months or less, it can be substantially limiting.
The ADA as amended provides that the “regarded as” prong of the definition of “disability” does “not apply to impairments that are [both] transitory and minor.” 42 U.S.C. 12102(3)(B). “Transitory impairment” is defined as “an impairment with an actual or expected duration of six months or less.”
The Department received two comments on this proposed language. One commenter recommended that the Department delete this language and “replace it with language clarifying that if a condition cannot meet the lower threshold of impairment under the third prong, it cannot meet the higher threshold of a disability under the first and second prongs.” The Department declines to modify these provisions because the determination of whether an individual satisfies the requirements of a particular prong is not a comparative determination between the three means of demonstrating disability under the ADA. The Department believes that the suggested language would create confusion because there are significant differences between the first two prongs and the third prong. In addition, the Department believes its proposed language is in keeping with the ADA Amendments Act and the supporting legislative history.
The other commenter suggested that the Department add language to provide greater clarity with respect to the application of the transitory and minor exception to the “regarded as prong.” The Department does not believe that additional language should be added to these rules of construction, which relate only to whether there is a six-month test for the first two prongs of the definition. As discussed below, the Department has revised both the regulatory text at §§ 35.108(f) and 36.105(f) and its guidance on the application of the “transitory and minor” exception to the “regarded as” prong.
In the NPRM, proposed §§ 35.108(d)(2) and 36.105(d)(2) set forth examples of impairments that should easily be found to substantially limit one or more major life activities. These provisions recognized that while there are no “per se” disabilities, for certain types of impairments the application of the various principles and rules of construction concerning the definition of “disability” to the individualized assessment would, in virtually all cases, result in the conclusion that the impairment substantially limits a major life activity. Thus, the necessary individualized assessment of coverage premised on these types of impairments should be particularly simple and straightforward. The purpose of the “predictable assessments” provisions is to simplify consideration of those disabilities that virtually always create substantial limitations to major life activities, thus satisfying the statute's directive to create clear, consistent, and enforceable standards and ensuring that the inquiry of “whether an individual's impairment is a disability under the ADA should not demand extensive analysis.”
The Department believes that the predictable assessments provisions comport with the ADA Amendments Act's emphasis on adopting a less burdensome and more expansive definition of “disability.” The provisions are rooted in the application of the statutory changes to the meaning and interpretation of the definition of “disability” contained in the ADA Amendments Act and flow from the rules of construction set forth in §§ 35.108(a)(2)(i), 36.105(a)(2)(i), 35.108(c)(2)(i) and (ii), 36.105(c)(2)(i) and (ii). These rules of construction and other specific provisions require the broad construction of the definition of “disability” in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. In addition, they lower the standard to be applied to “substantially limits,” making clear that an impairment need not prevent or significantly restrict an individual from performing a major life activity; clarify that major life activities include major bodily functions; elucidate that impairments that are
Several organizations representing persons with disabilities and the elderly, constituting the majority of commenters on these provisions, supported the inclusion of the predictable assessments provisions. One commenter expressed strong support for the provision and recommended that it closely track the corresponding provision in the EEOC title I rule, while another noted its value in streamlining individual assessments. In contrast, some commenters from educational institutions and testing entities recommended the deletion of these provisions, expressing concern that it implies the existence of “per se” disabilities, contrary to congressional intent that each assertion of disability should be considered on a case-by-case basis. The Department does not believe that the predictable assessment provisions constitutes a “per se” list of disabilities and will retain it. These provisions highlight, through a non-exhaustive list, impairments that virtually always will be found to substantially limit one or more major life activities. Such impairments still warrant individualized assessments, but any such assessments should be especially simple and straightforward.
The legislative history of the ADA Amendments Act supports the Department's approach in this area. In crafting the Act, Congress hewed to the ADA definition of “disability,” which was modeled on the definition of “disability” in the Rehabilitation Act, and indicated that it wanted courts to interpret the definition as it had originally been construed.
Some commenters asked the Department to add certain impairments to the predictable assessments list, while others asked the Department to remove certain impairments. Commenters representing educational and testing institutions urged that, if the Department did not delete the predictable assessment provisions, then the list should be modified to remove any impairments that are not obvious or visible to third parties and those for which functional limitations can change over time. One commenter cited to a pre-ADA Amendments Act reasonable accommodations case, which included language regarding the uncertainty facing employers in determining appropriate reasonable accommodations when mental impairments often are not obvious and apparent to employers.
The Department believes that the list accurately illustrates impairments that virtually always will result in a substantial limitation of one or more major life activities. The Department recognizes that impairments are not always static and can result in different degrees of functional limitation at different times, particularly when mitigating measures are used. However, the ADA as amended anticipates variation in the extent to which impairments affect major life activities, clarifying that impairments that are episodic or in remission nonetheless are disabilities if they would be substantially limiting when active and requiring the consideration of disabilities without regard to ameliorative mitigating measures. The Department does not believe that limiting the scope of its provisions addressing predictable assessments only to those disabilities that would never vary in functional limitation would be appropriate.
Other commenters speaking as individuals or representing persons with disabilities endorsed the inclusion of some impairments already on the list, including traumatic brain injury, sought the inclusion of additional impairments, requested revisions to some descriptions of impairments, or asked for changes to the examples of major life activities linked to specific impairments.
Several commenters requested the expansion of the predictable assessments list, in particular to add specific learning disabilities. Some commenters pointed to the ADA Amendments Act's legislative history, which included Representative Stark's remarks that specific learning disabilities are “neurologically based impairments that substantially limit the way these individuals perform major life activities, like reading or learning, or the time it takes to perform such activities.” 154 Cong. Rec. H8291 (daily ed. Sept. 17, 2008). Others recommended that some specific types of specific learning disabilities, including dyslexia, dyscalculia, dysgraphia, dyspraxia, and slowed processing speed should be referenced as predictable assessments. With respect to the major life activities affected by specific learning disabilities, commenters noted that specific learning disabilities are neurologically based and substantially limit learning, thinking, reading, communicating, and processing speed.
Similarly, commenters recommended the inclusion of ADHD, urging that it originates in the brain and affects executive function skills including organizing, planning, paying attention, regulating emotions, and self-monitoring. One commenter noted that if ADHD meets the criteria established in the DSM-5, then it would consistently meet the criteria to establish disability under the ADA. The same commenter noted that ADHD is brain based and affects the major life activity of executive function. Another commenter suggested that ADHD should be included and should be identified as limiting brain function, learning, reading, concentrating, thinking, communicating, interacting with others, and working. Other commenters urged the inclusion of panic disorders, anxiety disorder, cognitive disorder, and post-concussive disorder. A number of commenters noted that the exclusion of impairments from the predictable assessments list could be seen as supporting an inference that the impairments that are not mentioned should not easily be found to be disabilities.
The Department determined that it will retain the language it proposed in the NPRM and will not add or remove any impairments from this list. As discussed above, the list is identical to the EEOC's predictable assessments list, at 29 CFR 1630.2(g)(3)(iii), except that the Department's NPRM added traumatic brain injury. The Department received support for including traumatic brain injury and did not receive any comments recommending the removal of traumatic brain injury from the list; thus, we are retaining it in this final rule.
The Department's decision to track the EEOC's list, with one minor exception, stems in part from our intent to satisfy the congressional mandate for “clear, strong,
Some commenters expressed concern about the major life activities that the Department attributed to particular impairments. Two commenters sought revision of the major life activities attributed to intellectual disabilities, suggesting that it would be more accurate to reference cognitive function and learning, instead of reading, learning, and problem solving. One commenter recommended attributing the major life activity of brain function to autism rather than learning, social interaction, and communicating. The Department determined that it will follow the EEOC's model and, with respect to both intellectual disabilities and autism, it will reference the major bodily function of brain function. By using the term “brain function” to describe the system affected by various mental impairments, the Department intends to capture functions such as the brain's ability to regulate thought processes and emotions.
The Department considers it important to reiterate that, just as the list of impairments in these sections is not comprehensive, the list of major bodily functions or other major life activities linked to those impairments are not exhaustive. The impairments identified in these sections, may affect a wide range of major bodily functions and other major life activities. The Department's specification of certain major life activities with respect to particular impairments simply provides one avenue by which a person might elect to demonstrate that he or she has a disability.
The Department recognizes that impairments listed in §§ 35.108(d)(2) and 36.105(d)(2) may substantially limit other major life activities in addition to those listed in the regulation. For example, diabetes may substantially limit major life activities including eating, sleeping, and thinking. Major depressive disorder may substantially limit major life activities such as thinking, concentrating, sleeping, and interacting with others. Multiple sclerosis may substantially limit major life activities such as walking, bending, and lifting.
One commenter noted that the NPRM did not track the EEOC's language with respect to the manner in which it identified a major bodily function that is substantially limited by epilepsy, muscular dystrophy, or multiple sclerosis in 29 CFR 1630.2(j)(3)(iii). While the EEOC listed each of these three impairments individually, noting in each case that the major bodily function affected is neurological function, at 29 CFR 1630.2(j)(3)(iii), the NPRM grouped the three impairments and noted that they affect neurological function. In order to clarify that each of the three impairments may manifest a substantial limitation of neurological function, the final rule incorporates “each” immediately following the list of the three impairments. Similarly, the Department added an “each” to §§ 35.108(d)(2)(iii)(K) and 36.105(d)(2)(iii)(K) to make clear that each of the listed impairments substantially limits brain function.
Some commenters representing testing entities and educational institutions sought the insertion of language in the predictable assessment provisions that would indicate that individuals found to have disabilities are not, by virtue of a determination that they have a covered disability, eligible for a testing accommodation or a reasonable modification. The Department agrees with these commenters that the determination of disability is a distinct determination separate from the determination of the need for a requested modification or a testing accommodation. The Department declines to add the language suggested by the commenters to §§ 35.108(d)(2) and 36.105(d)(2), however, because the requirements for reasonable modifications are addressed separately in §§ 35.130(b)(7) and 36.302 of the title II and III regulations and the requirements related to providing appropriate accommodations in testing and licensing are found at § 36.309.
These concepts were affirmed by Congress in the legislative history to the ADA Amendments Act: “We particularly believe that this test, which articulated an analysis that considered whether a person's activities are limited in condition, duration and manner, is a useful one. We reiterate that using the correct standard—one that is lower than the strict or demanding standard created by the Supreme Court in
In the NPRM, proposed §§ 35.108(d)(3)(i) and 35.105(d)(3)(i) noted that the rules of construction at §§ 35.108(d)(1) and 35.105(d)(1) should inform consideration of how individuals are substantially limited in major life activities. Sections 35.108(d)(3)(ii) and 36.105(d)(3)(ii) provided examples of how restrictions on condition, manner, or duration might be interpreted and also clarified that the negative or burdensome side effects of medication or other mitigating measures may be considered when determining whether an individual has a disability. In §§ 35.108(d)(3)(iii) and 36.105(d)(3)(iii), the proposed language set forth a requirement to focus on how a major life activity is substantially limited, rather than on the ultimate outcome a person with an impairment can achieve.
The Department received comments on the condition, manner, or duration provision from advocacy groups for individuals with disabilities, from academia, from education and testing entities, and from interested individuals. Several advocacy organizations for individuals with disabilities and private individuals noted that the section title's heading was inconsistent with the regulatory text and sought the replacement of the “and” in the section's title, “Condition, manner, and duration,” with an “or.” Commenters expressed concern that retaining the “and” in the heading title would be inconsistent with congressional intent and would incorrectly suggest that individuals are subject to a three-part test and must demonstrate that an impairment substantially limits a major life activity with respect to condition, manner, and duration. The Department agrees that the “and” used in the title of the proposed regulatory provision could lead to confusion and a misapplication of the law and has revised the title so it now reads “Condition, manner,
In the NPRM, proposed §§ 35.108(d)(3)(i) and 36.105(d)(3)(i) noted that the application of the terms “condition” “manner,” or “duration” should at all times take into account the principles in § 35.108(d)(1) and § 36.105(d)(1), respectively, which referred to the rules of construction for “substantially limited.” The proposed regulatory text also included brief explanations of the meaning of the core terms, clarifying that in appropriate cases, it could be useful to consider, in comparison to most people in the general population, the conditions under which an individual performs a major life activity; the manner in which an individual performs a major life activity; or the time it takes an
Several disability rights advocacy groups and individuals supported the NPRM approach, with some referencing the value of pointing to the rules of construction and their relevance to condition, manner, or duration considerations. Some commenters noted that it was helpful to highlight congressional intent that the definition of “disability” should be broadly construed and not subject to extensive analysis. Another commenter recommended introducing a clarification that, while the limitation imposed by an impairment must be important, it does not need to rise to the level of severely or significantly restricting the ability to perform a major life activity. Some commenters sought additional guidance regarding the meaning of the terms “condition,” “manner,” and “duration” and recommended the addition of more illustrative examples.
In response to commenters' concerns, the Department has modified the regulatory text in §§ 35.108(d)(3)(i) and 36.105(d)(3)(i) to reference all of the rules of construction rather than only those pertaining to “substantially limited.” The Department also added §§ 35.108(d)(3)(iv) and 36.105(d)(3)(iv), further discussed below, to clarify that the rules of construction will not always require analysis of condition, manner, or duration, particularly with respect to certain impairments, such as those referenced in paragraph (d)(2)(iii) (predictable assessments). With these changes, the Department believes that the final rule more accurately reflects congressional intent. The Department also believes that clarifying the application of the rules of construction to condition, manner, or duration will contribute to consistent interpretation of the definition of “disability” and reduce inadvertent reliance on older cases that incorporate demanding standards rejected by Congress in the ADA Amendments Act.
It is the Department's view that the rules of construction offer substantial guidance about how condition, manner, or duration must be interpreted so as to ensure the expansive coverage intended by Congress. Except for this clarification, the Department did not receive comments opposing the proposed regulatory text on condition, manner, or duration in §§ 35.108(d)(3)(i) and 36.105(d)(3)(i) and did not make any other changes to these provisions.
Some commenters objected to language in the preamble to the NPRM which suggested that there might be circumstances in which the consideration of condition, manner, or duration might not include comparisons to most people in the general population. On reconsideration, the Department recognizes that this discussion could create confusion about the requirements. The Department believes that condition, manner, or duration determinations should be drawn in contrast to most people in the general population, as is indicated in the related rules of construction, at §§ 35.108(d)(1)(v) and 36.105(d)(1)(v).
Proposed §§ 35.108(d)(3)(ii) and 36.105(d)(3)(ii) set forth examples of the types of evidence that might demonstrate condition, manner, or duration limitations, including the way an impairment affects the operation of a major bodily function, the difficulty or effort required to perform a major life activity, the pain experienced when performing a major life activity, and the length of time it takes to perform a major life activity. These provisions also clarified that the non-ameliorative effects of mitigating measures may be taken into account to demonstrate the impact of an impairment on a major life activity. The Department's discussion in the NPRM preamble noted that such non-ameliorative effects could include negative side effects of medicine, burdens associated with following a particular treatment regimen, and complications that arise from surgery, among others. The preamble also provided further clarification of the possible applications of condition, manner, or duration analyses, along with several examples. Several commenters supported the proposed rule's incorporation of language and examples offering insight into the varied ways that limitations on condition, manner, or duration could demonstrate substantial limitation. One commenter positively noted that the language regarding the “difficulty, effort, or time required to perform a major life activity” could prove extremely helpful to individuals asserting a need for testing accommodations, as evidence previously presented regarding these factors was deemed insufficient to demonstrate the existence of a disability. Some commenters requested the insertion of additional examples and explanation in the preamble about how condition, manner or duration principles could be applied under the new rules of construction. Another commenter sought guidance on the specific reference points that should be used when drawing comparisons with most people in the general population. The commenter offered the example of delays in developmental milestones as a possible referent in evaluating children with speech-language disorders, but noted a lack of guidance regarding comparable referents for adults. The commenter also noted that guidance is needed regarding what average or acceptable duration might be with respect to certain activities. An academic commenter expressed support for the Department's reference to individuals with learning impairments using certain self-mitigating measures, such as extra time to study or taking an examination in a different format, and the relevance of these measures to condition, manner, and duration.
The Department did not receive comments opposing the NPRM language on condition, manner, or duration in §§ 35.108(d)(3)(ii) and 36.105(d)(3)(ii) and is not making any changes to this language. The Department agrees that further explanation and examples as provided below regarding the concepts of condition, manner, or duration will help clarify how the ADA Amendments Act has expanded the definition of “disability.” An impairment may substantially limit the “condition” or “manner” in which a major life activity can be performed in a number of different ways. For example, the condition or manner in which a major life activity can be performed may refer to how an individual performs a major life activity;
Condition or manner may refer to the extent to which a major life activity, including a major bodily function, can be performed. In some cases, the condition or manner under which a major bodily function can be performed may be substantially limited when the impairment “causes the operation [of the bodily function] to over-produce or under-produce in some harmful fashion.”
“Duration” refers to the length of time an individual can perform a major life activity or the length of time it takes an individual to perform a major life activity, as compared to most people in the general population. For example, a person whose back or leg impairment precludes him or her from standing for more than two hours without significant pain would be substantially limited in standing, because most people can stand for more than two hours without significant pain. However, “[a] person who can walk for 10 miles continuously is not substantially limited in walking merely because on the eleventh mile, he or she
The Department reiterates that, because the limitations created by certain impairments are readily apparent, it would not be necessary in such cases to assess the negative side effects of a mitigating measure in determining that a particular impairment substantially limits a major life activity. For example, there likely would be no need to consider the burden that dialysis treatment imposes for someone with end-stage renal disease because the impairment would allow a simple and straightforward determination that the individual is substantially limited in kidney function.
One commenter representing people with disabilities asked the Department to recognize that, particularly with respect to learning disabilities, on some occasions the facts related to condition, manner, or duration necessary to reach a diagnosis of a learning disability also are sufficient to establish that the affected individual has a disability under the ADA. The Department agrees that the facts gathered to establish a diagnosis of an impairment may simultaneously satisfy the requirements for demonstrating limitations on condition, manner, or duration sufficient to show that the impairment constitutes a disability.
In passing the ADA Amendments Act, Congress clarified that courts had misinterpreted the ADA definition of “disability” by, among other things, inappropriately emphasizing the capabilities of people with disabilities to achieve certain outcomes.
[S]ome courts have found that students who have reached a high level of academic achievement are not to be considered individuals with disabilities under the ADA, as such individuals may have difficulty demonstrating substantial limitation in the major life activities of learning or reading relative to “most people.” When considering the condition, manner or duration in which an individual with a specific learning disability performs a major life activity, it is critical to reject the assumption that an individual who performs well academically or otherwise cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking. As such, the Committee rejects the findings in
The Committee believes that the comparison of individuals with specific learning disabilities to “most people” is not problematic unto itself, but requires a careful analysis of the method and manner in which an individual's impairment limits a major life activity. For the majority of the population, the basic mechanics of reading and writing do not pose extraordinary lifelong challenges; rather, recognizing and forming letters and words are effortless, unconscious, automatic processes. Because specific learning disabilities are neurologically-based impairments, the process of reading for an individual with a reading disability (
Sections 35.108(d)(3)(iii) and 36.105(d)(3)(iii) of the proposed rule reflected congressional intent and made clear that the outcome an individual with a disability is able to achieve is not determinative of whether an individual is substantially limited in a major life activity. Instead, an individual can demonstrate the extent to which an impairment affects the condition, manner, or duration in which the individual performs a major life activity, such that it constitutes a substantial limitation. The ultimate outcome of an individual's efforts should not undermine a claim of disability, even if the individual ultimately is able to achieve the same or similar result as someone without the impairment.
The Department received several comments on these provisions, with disability organizations and individuals supporting the inclusion of these provisions and some testing entities and an organization representing educational institutions opposing them. The opponents argued that academic performance and testing outcomes are objective evidence that contradict findings of disability and that covered entities must be able to focus on those outcomes in order to demonstrate whether an impairment has contributed to a substantial limitation. These commenters argued that the evidence frequently offered by those making claims of disability that demonstrate the time or effort required to achieve a result, such as evidence of self-mitigating measures, informal accommodations, or recently provided reasonable modifications, is inherently subjective and unreliable. The testing entities suggested that the Department had indicated support for their interest in focusing on outcomes over process-related obstacles in the NPRM preamble language where the Department had noted that covered entities “may defeat a showing of substantial limitation by refuting whatever evidence the individual seeking coverage has offered, or by offering evidence that shows that an impairment does not impose a substantial limitation on a major life activity.” NPRM, 79 FR 4839, 4847-48 (Jan. 30, 2014). The commenters representing educational institutions and testing entities urged the removal of §§ 35.108(d)(3)(iii) and 36.105(d)(3)(iii) or, in the alternative, the insertion of language indicating that outcomes, such as grades and test scores indicating academic success, are relevant evidence that should be considered when making disability determinations.
In contrast, commenters representing persons with disabilities and individual commenters expressed strong support for these provisions, noting that what an individual can accomplish despite an impairment does not accurately reflect the obstacles an individual had to overcome because of the impairment. One organization representing persons with disabilities noted that while individuals with disabilities have achieved successes at work, in academia, and in other settings, their successes should not create obstacles to addressing what they can do “in spite of an impairment.” Commenters also expressed concerns that testing entities and educational institutions had failed to comply with the rules of construction or to revise prior policies and practices to comport with the new standards under the ADA as amended. Some commenters asserted that testing entities improperly rejected accommodation requests because the testing entities focused on test scores and outcomes rather than on how individuals learn; required severe levels of impairment; failed to disregard the helpful effect of self-mitigating measures; referenced participation in extracurricular activities as evidence that individuals did not have disabilities; and argued that individuals diagnosed with specific learning disabilities or ADHD in adulthood cannot demonstrate that they have a disability because their diagnosis occurred too late.
Commenters representing persons with disabilities pointed to the discussion in the legislative history about restoring a focus on process rather than outcomes with respect to learning disabilities. They suggested that such a shift in focus also would be helpful in evaluating ADHD. One commenter asked the Department to include a reference to ADHD and to explain that persons with ADHD may achieve a high level of academic success but may nevertheless be substantially limited in one or more major life activities, such as reading, writing, speaking, concentrating, or learning. A private citizen requested the addition of examples demonstrating the application of these provisions because, in the commenter's view, there have been many problems with decisions regarding individuals with learning disabilities and an inappropriate focus on outcomes and test scores.
The Department declines the request to add a specific reference to ADHD in these provisions. The Department believes that the principles discussed above apply equally to persons with ADHD as well as individuals with other impairments. The provision already references an illustrative, but not exclusive, example of an individual with a learning disability. The Department believes that this example effectively illustrates the concern that has affected individuals with other impairments due to an inappropriate emphasis on outcomes rather than how a major life activity is limited.
Organizations representing testing and educational entities asked the Department to add regulatory language indicating that testing-related outcomes, such as grades and test scores, are relevant to disability determinations under the ADA. The Department has considered this proposal and declines to adopt it because it is inconsistent with congressional intent. As discussed earlier in this section, Congress specifically stated that the outcome an individual with a disability is able to achieve is not determinative of whether that individual has a physical or mental impairment that substantially limits a major life activity. The analysis of whether an individual with an impairment has a disability is a fact-driven analysis shaped by how an impairment has substantially limited one or more major life activities or major bodily functions, considering those specifically asserted by the individual as well as any others that may apply. For example, if an individual with ADHD seeking a reasonable modification or a testing accommodation asserts substantial limitations in the major life activities of concentrating and reading, then the analysis of whether or not that individual has a covered disability will necessarily focus on concentrating and reading. Relevant considerations could include restrictions on the conditions, manner, or duration in which the individual concentrates or reads, such as a need for a non-stimulating environment or extensive time required to read. Even if an individual has asserted that an impairment creates substantial limitations on activities such as reading, writing, or concentrating, the individual's academic record or prior standardized testing results might not be relevant to the inquiry. Instead, the individual could show substantial limitations by providing evidence of condition, manner, or duration limitations, such as the need for a reader or additional time. The Department does not believe that the testing results or grades of an individual seeking reasonable modifications or testing accommodations always would be relevant to determinations of disability. While testing and educational entities may, of course, put forward any evidence that they deem pertinent to their response to an assertion of substantial limitation, testing results and grades may be of only limited relevance.
In addition, the Department does not agree with the assertions made by testing and educational entities that evidence of testing and grades is objective and, therefore, should be weighted more heavily, while evidence of self-mitigating measures, informal accommodations, or recently provided accommodations or modifications is inherently subjective and should be afforded less consideration. Congress's discussion of the relevance of testing outcomes and grades clearly indicates that it did not consider them definitive evidence of the existence or non-existence of a disability. While tests and grades typically are numerical measures of performance, the capacity to quantify them does not make them inherently more valuable with respect to proving or disproving disability. To the contrary, Congress's incorporation of rules of construction emphasizing broad coverage of disabilities to the maximum extent permitted, its direction that such determinations should neither contemplate ameliorative mitigating measures nor demand extensive analysis, and its recognition of learned and adaptive modifications all support its openness for individuals with impairments to put forward a wide range of evidence to demonstrate their disabilities.
The Department believes that Congress made its intention clear that the ADA's protections should encompass people for whom the nature of their impairment requires an assessment that focuses on how they engage in major life activities, rather than the ultimate outcome of those activities. Beyond directly addressing this concern in the debate over the ADA Amendments Act, Congress's incorporation of the far-reaching rules of construction, its explicit rejection of the consideration of ameliorative mitigating measures—including “learned behavioral or adaptive neurological modifications,” 42 U.S.C. 12102(4)(E)(i)(IV), such as those often employed by individuals with learning disabilities or ADHD—and its stated intention to “reinstat[e] a broad scope of protection to be available under the ADA,” Public Law 110-325, sec. 2(b)(1), all support the language initially proposed in these provisions. For these reasons, the Department determined that it will retain the language of these provisions as they were originally drafted.
As noted in the discussion above, the Department has added §§ 35.108(d)(3)(iv) and 36.105(d)(3)(iv) in the final rule to clarify that analysis of condition, manner, or duration will not always be necessary, particularly with respect to certain impairments that can easily be found to substantially limit a major life activity. This language is also found in the EEOC ADA title I regulation.
At the same time, individuals seeking coverage under the first or second prong of the definition of “disability” should not be constrained from offering evidence needed to establish that their impairment is substantially limiting.
The rules of construction set forth at §§ 35.108(d)(1)(viii) and 36.105(d)(1)(viii) of the final rule make clear that the ameliorative effects of mitigating measures shall not be considered when determining whether an impairment substantially limits a major life activity. In the NPRM, proposed §§ 35.108(d)(4) and 36.105(d)(4) provided a non-inclusive list of mitigating measures, which includes medication, medical supplies, equipment, appliances, low-vision devices, prosthetics, hearing aids, cochlear implants and implantable hearing devices, mobility devices, oxygen therapy equipment, and assistive technology. In addition, the proposed regulation clarified that mitigating measures can include “learned behavioral or adaptive neurological modifications,” psychotherapy, behavioral therapy, or physical therapy, and “reasonable modifications” or auxiliary aids and services.
The phrase “learned behavioral or adaptive neurological modifications,” is intended to include strategies developed by an individual to lessen the impact of an impairment. The phrase “reasonable modifications” is intended to include informal or undocumented accommodations and modifications as well as those provided through a formal process.
The ADA as amended specifies one exception to the rule on mitigating measures, stating that the ameliorative effects of ordinary eyeglasses and contact lenses shall be considered in determining whether a person has an impairment that substantially limits a major life activity and thereby is a person with a disability. 42 U.S.C. 12102(4)(E)(ii). As discussed above, §§ 35.108(d)(4)(i) and 36.105(d)(4)(i) incorporate this exception by excluding ordinary eyeglasses and contact lenses from the definition of “low-vision devices,” which are mitigating measures that may not be considered in determining whether an impairment is a substantial limitation.
The Department received a number of comments supporting the Department's language in these sections and its broad range of examples of what constitutes a mitigating measure. Commenters representing students with disabilities specifically supported the inclusion of “learned behavioral or adaptive neurological modifications,” noting that the section “appropriately supports and highlights that students [and individuals in other settings] may have developed self-
The Department notes that self-mitigating measures or undocumented modifications or accommodations for students who have impairments that substantially limit learning, reading, writing, speaking, or concentrating may include such measures as arranging to have multiple reminders for task completion; seeking help from others to provide reminders or to assist with the organization of tasks; selecting courses strategically (such as selecting courses that require papers instead of exams); devoting a far larger portion of the day, weekends, and holidays to study than students without disabilities; teaching oneself strategies to facilitate reading connected text or mnemonics to remember facts (including strategies such as highlighting and margin noting); being permitted extra time to complete tests; receiving modified homework assignments; or taking exams in a different format or in a less stressful or anxiety-provoking setting. Each of these mitigating measures, whether formal or informal, documented or undocumented, can improve the academic function of a student having to deal with a substantial limitation in a major life activity such as concentrating, reading, speaking, learning, or writing. However, when the determination of disability is made without considering the ameliorative effects of these measures, as required under the ADA as amended, these individuals still have a substantial limitation in major life activities and are covered by the ADA.
Some commenters argued that the Department's examples of mitigating measures inappropriately include normal learning strategies and asked that the Department withdraw or narrow its discussion of self-mitigating measures. The Department disagrees. Narrowing the discussion of self-mitigating measures to exclude normal or common strategies would not be consistent with the ADA Amendments Act. The Department construes learned behavioral or adaptive neurological modifications broadly to include strategies applied or utilized by an individual with a disability to lessen the effect of an impairment; whether the strategy applied is normal or common to students without disabilities is not relevant to whether an individual with a disability's application of the strategy lessens the effect of an impairment.
An additional commenter asked the Department to add language to the regulation and preamble addressing mitigating measures an individual with ADHD may employ. This commenter noted that “[a]n individual with ADHD may employ a wide variety of self-mitigating measures, such as exertion of extensive extra effort, use of multiple reminders, whether low tech or high tech, seeking a quiet or distraction free place or environment to do required activities.” The Department agrees with this commenter that these are examples of the type of self-mitigating measures used by individuals with ADHD, but believes that they fall within the range of mitigating measures already addressed by the regulatory language.
Another commenter asked the Department to add language to the regulation or preamble addressing surgical interventions in a similar fashion to the approach taken in the EEOC's title I preamble, 76 FR 16978, 16983 (Mar. 25, 2011). There, the EEOC noted that a surgical intervention may be an ameliorative mitigating measure that could result in the permanent elimination of an impairment, but it also indicated that confusion about how this example might apply recommended against its inclusion in the regulatory text. Therefore, the EEOC eliminated that example from the draft regulatory text and recommended that, “[d]eterminations about whether surgical interventions should be taken into consideration when assessing whether an individual has a disability are better assessed on a case-by-case basis.” The Department agrees with the EEOC and underscores that surgical interventions may constitute mitigating measures that should not be considered in determining whether an individual meets the definition of “disability.” The Department declines to make any changes to its proposed regulatory text for these sections of the final rule.
The ADA Amendments Act provides an “illustrative but non-comprehensive list of the types of mitigating measures that are not to be considered.” 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers) at 9;
The second prong of the definition of “disability” under the ADA provides that an individual with a record of an impairment that substantially limits or limited a major life activity is an individual with a disability. 42 U.S.C. 12102(1)(B).
Paragraph (3) of the definition of “disability” in the existing title II and title III regulations states that the phrase “has a record of such an impairment” means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. 28 CFR 35.104, 36.104. The NPRM proposed keeping the language in the title II and title III regulations (with minor editorial changes) but to renumber it as §§ 35.108(e)(1) and 36.105(e)(1). In addition, the NPRM proposed adding a new second paragraph stating that any individual's assertion of a record of impairment that substantially limits a major life activity should be broadly construed to the maximum extent permitted by the ADA and should not require extensive analysis. If an individual has a history of an impairment that substantially limited one or more major life activities when compared to most people in the general population or was misclassified as having had such an impairment, then that individual will satisfy the third prong of the definition of “disability.” The NPRM also proposed adding paragraph (3), which provides that “[a]n individual with a record of a substantially limiting impairment may be entitled to a reasonable modification if needed and related to the past disability.”
The Department received no comments objecting to its proposed language for these provisions and has retained it in the final rule. The Department received one comment requesting additional guidance on the meaning of these provisions. The Department notes that Congress intended this prong of the definition of “disability” to ensure that people are not discriminated against based on prior medical history. This prong is also intended to ensure that individuals are not discriminated against because they have been misclassified as an individual with a disability. For example, individuals misclassified as having learning disabilities or intellectual disabilities are protected from discrimination on the basis of that erroneous classification.
This prong of the definition is satisfied where evidence establishes that an individual has had a substantially limiting impairment. The impairment indicated in the record must be an impairment that would substantially limit one or more of the individual's major life activities. The terms “substantially limits” and “major life activity” under the second prong of the definition of “disability” are to be construed in accordance with the same principles applicable under the “actual disability” prong, as set forth in §§ 35.108(b) and 36.105(b).
There are many types of records that could potentially contain this information, including but not limited to, education, medical, or employment records. The Department notes that past history of an impairment need not be reflected in a specific document. Any evidence that an individual has a past history of an impairment that substantially limited a major life activity is all that is necessary to establish coverage under the second prong. An individual may have a “record of” a substantially limiting impairment—and thus establish coverage under the “record of” prong of the statute—even if a covered entity does not specifically know about the relevant record. For the covered entity to be liable for discrimination under the ADA, however, the individual with a “record of” a substantially limiting impairment must prove that the covered entity discriminated on the basis of the record of the disability.
Individuals who are covered under the “record of” prong may be covered under the first prong of the definition of “disability” as well. This is because the rules of construction in the ADA Amendments Act and the Department's regulations provide that an individual with an impairment that is episodic or in remission can be protected under the first prong if the impairment would be substantially limiting when active.
Finally, these provisions of the regulations clarify that an individual with a record of a disability is entitled to a reasonable modification currently needed relating to the past substantially limiting impairment. In the legislative history, Congress stated that reasonable modifications were available to persons covered under the second prong of the definition.
The “regarded as having such an impairment” prong of the definition of “disability” was included in the ADA specifically to protect individuals who might not meet the first two prongs of the definition, but who were subject to adverse decisions by covered entities based upon unfounded concerns, mistaken beliefs, fears, myths, or prejudices about persons with disabilities.
In
Thus, under the ADA as amended, it is not necessary, as it was prior to the ADA Amendments Act and following the Supreme Court's decision in
In the NPRM, the Department proposed §§ 35.108(f)(1) and 36.105(f)(1), which are intended to restore the meaning of the “regarded as” prong of the definition of “disability” by adding language that incorporates the amended statutory provision: “An individual is `regarded as having such an impairment' if the individual is subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity, except for an impairment that is both transitory and minor.”
The proposed provisions also incorporate the statutory definition of transitory impairment, stating that a “transitory impairment is an impairment with an actual or expected duration of six months or less.” The “transitory and minor” exception was not in the third prong in the original statutory definition of “disability.” Congress added this exception to address concerns raised by the business community that “absent this exception, the third prong of the definition would have covered individuals who are regarded as having common ailments like the cold or flu.”
In addition, proposed §§ 35.108(f)(2) and 36.105(f)(2) stated that any time a public entity or covered entity takes a prohibited action because of an individual's actual or perceived impairment, even if the entity asserts, or may or does ultimately establish, a defense to such action, that individual is “regarded as” having such an impairment. Commenters on these provisions recommended that the Department revise its language to clarify that the determination of whether an impairment is in fact “transitory and minor” is an objective determination and that a covered entity may not defeat “regarded as” coverage of an individual simply by demonstrating that it subjectively believed that the impairment is transitory and minor. In addition, a number of commenters cited the EEOC title I rule at 29 CFR 1630.15(f) and asked the Department to clarify that “the issue of whether an actual or perceived impairment is `transitory and minor' is an affirmative defense and not part of the plaintiff's burden of proof.” The Department agrees with these commenters and has revised paragraphs (1) and (2) of these sections for clarity, as shown in §§ 35.108(f)(2) and 36.105(f)(2) of the final rule.
The revised language makes clear that the relevant inquiry under these sections is whether the actual or perceived impairment that is the basis of the covered entity's action is objectively “transitory and minor,” not whether the covered entity claims it subjectively believed the impairment was transitory and minor. For example, a private school that expelled a student whom it believes has bipolar disorder cannot take advantage of this exception by asserting that it believed the student's impairment was transitory and minor, because bipolar disorder is not objectively transitory and minor. Similarly, a public swimming pool that refused to admit an individual with a skin rash, mistakenly believing the rash to be symptomatic of HIV, will have “regarded” the individual as having a disability. It is not a defense to coverage that the skin rash was objectively transitory and minor because the covered entity took the prohibited action based on a perceived impairment, HIV, that is not transitory and minor.
The revised regulatory text also makes clear that the “transitory and minor” exception to a “regarded as” claim is a defense to a claim of discrimination and not part of an individual's prima facie case. The
The Department received no comments on the language in these paragraphs. Upon consideration, in the final rule, the Department has decided to retain the regulatory text for §§ 35.108(f)(3) and 36.105(f)(3) except that the reference to “covered entity” in the title III regulatory text is changed to “public accommodation.”
The NPRM did not propose changes to the text of the existing exclusions contained in paragraph (5) of the definition of “disability” in the title II and title III regulations,
The ADA Amendments Act revised the ADA to specify that a public entity under title II, and any person who owns, leases (or leases to), or operates a place of public accommodation under title III, “need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual who meets the definition of disability” solely on the basis of being regarded as having an impairment. 42 U.S.C. 12201(h). In the NPRM, the Department proposed §§ 35.130(b)(7)(i) and 36.302(g) to reflect this concept, explaining that a public entity or covered entity “is not required to provide a reasonable modification to an individual who meets the definition of disability solely under the `regarded as' prong of the definition of disability.” These provisions clarify that the duty to provide reasonable modifications arises only when the individual establishes coverage under the first or second prong of the definition of “disability.” These provisions are not intended to diminish the existing obligations to provide reasonable modifications under title II and title III of the ADA.
The Department received no comments associated with these provisions and retains the NPRM language in the final rule except for replacing the words “covered entity” with “public accommodation” in § 36.302(g).
The ADA as amended provides that “[n]othing in this [Act] shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability.” 42 U.S.C. 12201(g). In the NPRM the Department proposed adding §§ 35.130(
The Department received no comments associated with this issue and has retained these provisions in the final rule.
The Department notes that the ADA Amendments Act revised the rules of construction in title V of the ADA by including a provision affirming that nothing in the Act changed the existing ADA requirement that covered entities provide reasonable modifications in policies, practices, or procedures unless the entity can demonstrate that making such modifications, including academic requirements in postsecondary education, would fundamentally alter the nature of goods, services, facilities, privileges, advantages, or accommodations involved.
5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b) and 12205a.
(a)
(b)
(a)(1)
(i) A physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(ii) A record of such an impairment; or
(iii) Being regarded as having such an impairment as described in paragraph (f) of this section.
(2)
(ii) An individual may establish coverage under any one or more of the three prongs of the definition of “disability” in paragraph (a)(1) of this section, the “actual disability” prong in paragraph (a)(1)(i) of this section, the “record of” prong in paragraph (a)(1)(ii) of this section, or the “regarded as” prong in paragraph (a)(1)(iii) of this section.
(iii) Where an individual is not challenging a public accommodation's failure to provide reasonable modifications under § 36.302, it is generally unnecessary to proceed under the “actual disability” or “record of” prongs, which require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. In these cases, the evaluation of coverage can be made solely under the “regarded as” prong of the definition of “disability,” which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. An individual may choose, however, to proceed under the “actual disability” or “record of” prong regardless of whether the individual is challenging a public accommodation's failure to provide reasonable modifications.
(b)(1)
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as: Neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or
(ii) Any mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability.
(2)
(3)
(c)(1)
(i) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working; and
(ii) The operation of a
(2)
(ii) Whether an activity is a
(d)
(i) The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard.
(ii) The primary object of attention in cases brought under title III of the ADA should be whether public accommodations have complied with their obligations and whether discrimination has occurred, not the extent to which an individual's impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment substantially limits a major life activity should not demand extensive analysis.
(iii) An impairment that substantially limits one major life activity does not need to limit other major life activities in order to be considered a substantially limiting impairment.
(iv) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
(v) An impairment is a disability within the meaning of this part if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment does not need to prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.
(vi) The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for substantially limits applied prior to the ADA Amendments Act.
(vii) The comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence. Nothing in this paragraph (d)(1) is intended, however, to prohibit or limit the presentation of scientific, medical, or statistical evidence in making such a comparison where appropriate.
(viii) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity. Ordinary eyeglasses or contact lenses are lenses that are intended to fully correct visual acuity or to eliminate refractive error.
(ix) The six-month “transitory” part of the “transitory and minor” exception in paragraph (f)(2) of this section does not apply to the “actual disability” or “record of” prongs of the definition of “disability.” The effects of an impairment lasting or expected to last less than six months can be substantially limiting within the meaning of this section for establishing an actual disability or a record of a disability.
(2)
(ii) Applying these principles, the individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage under paragraph (a)(1)(i) of this section (the “actual disability” prong) or paragraph (a)(1)(ii) of this section (the “record of” prong). Given their inherent nature, these types of impairments will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity. Therefore, with respect to these types of impairments, the necessary individualized assessment should be particularly simple and straightforward.
(iii) For example, applying these principles it should easily be concluded that the types of impairments set forth in paragraphs (d)(2)(iii)(A) through (K) of this section will, at a minimum, substantially limit the major life activities indicated. The types of impairments described in this paragraph may substantially limit additional major life activities (including major bodily functions) not explicitly listed in paragraphs (d)(2)(iii)(A) through (K).
(A) Deafness substantially limits hearing;
(B) Blindness substantially limits seeing;
(C) Intellectual disability substantially limits brain function;
(D) Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function;
(E) Autism substantially limits brain function;
(F) Cancer substantially limits normal cell growth;
(G) Cerebral palsy substantially limits brain function;
(H) Diabetes substantially limits endocrine function;
(I) Epilepsy, muscular dystrophy, and multiple sclerosis each substantially limits neurological function;
(J) Human Immunodeficiency Virus (HIV) infection substantially limits immune function; and
(K) Major depressive disorder, bipolar disorder, post-traumatic stress disorder, traumatic brain injury, obsessive compulsive disorder, and schizophrenia each substantially limits brain function.
(3)
(ii) Consideration of facts such as condition, manner, or duration may include, among other things, consideration of the difficulty, effort or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; or the way an impairment affects the operation of a major bodily function. In addition, the non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual's impairment substantially limits a major life activity.
(iii) In determining whether an individual has a disability under the “actual disability” or “record of” prongs of the definition of “disability,” the focus is on how a major life activity is substantially limited, and not on what outcomes an individual can achieve. For example, someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in one or more major life activities, including, but not limited to, reading, writing, speaking, or learning because of the additional time or effort he or she must spend to read, write, speak, or learn compared to most people in the general population.
(iv) Given the rules of construction set forth in this section, it may often be unnecessary to conduct an analysis involving most or all of the facts related to condition, manner, or duration. This is particularly true with respect to impairments such as those described in paragraph (d)(2)(iii) of this section, which by their inherent nature should be easily found to impose a substantial limitation on a major life activity, and for which the individualized assessment should be particularly simple and straightforward.
(4)
(i) Medication, medical supplies, equipment, appliances, low-vision devices (defined as devices that magnify, enhance, or otherwise augment a visual image, but not including ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aid(s) and cochlear implant(s) or other implantable hearing devices, mobility devices, and oxygen therapy equipment and supplies;
(ii) Use of assistive technology;
(iii) Reasonable modifications or auxiliary aids or services as defined in this regulation;
(iv) Learned behavioral or adaptive neurological modifications; or
(v) Psychotherapy, behavioral therapy, or physical therapy.
(e)
(2)
(3)
(f)
(1) Except as set forth in paragraph (f)(2) of this section, an individual is “regarded as having such an impairment” if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity, even if the public accommodation asserts, or may or does ultimately establish, a defense to the action prohibited by the ADA.
(2) An individual is not “regarded as having such an impairment” if the public accommodation demonstrates that the impairment is, objectively, both
(3) Establishing that an individual is “regarded as having such an impairment” does not, by itself, establish liability. Liability is established under title III of the ADA only when an individual proves that a public accommodation discriminated on the basis of disability within the meaning of title III of the ADA, 42 U.S.C. 12181-12189.
(g)
(1) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or
(3) Psychoactive substance use disorders resulting from current illegal use of drugs.
(c)
(g)
For guidance providing a section-by-section analysis of the revisions to 28 CFR parts 35 and 36 published on August 11, 2016, see appendix C of 28 CFR part 35.
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 |