| Page Range | 65169-65529 | |
| FR Document |
| Page and Subject | |
|---|---|
| 81 FR 65289 - Air Quality Designations for the 2012 Primary Annual Fine Particle (PM2.5 | |
| 81 FR 65335 - Government in the Sunshine Act Meeting Notice | |
| 81 FR 65175 - 2016 Amendments to the Manual for Courts-Martial, United States | |
| 81 FR 65173 - Prescription Opioid and Heroin Epidemic Awareness Week, 2016 | |
| 81 FR 65171 - National Farm Safety and Health Week, 2016 | |
| 81 FR 65169 - Constitution Day and Citizenship Day, Constitution Week, 2016 | |
| 81 FR 65376 - Changes in Flood Hazard Determinations | |
| 81 FR 65369 - Changes in Flood Hazard Determinations | |
| 81 FR 65361 - Meeting Announcement for the Technical Advisory Panel on Medicare Trustee Reports | |
| 81 FR 65341 - Narrow Woven Ribbons With Woven Selvedge From the People's Republic of China and Taiwan: Continuation of Antidumping Duty Orders and Countervailing Duty Order | |
| 81 FR 65342 - Certain Polyester Staple Fiber From the Republic of Korea: Rescission of Antidumping Duty Administrative Review; 2015-2016 | |
| 81 FR 65337 - Certain Carbon and Alloy Steel Cut-to-Length Plate From Brazil, South Africa, and the Republic of Turkey: Affirmative Preliminary Determinations of Sales at Less Than Fair Value | |
| 81 FR 65390 - National Protection and Programs Directorate | |
| 81 FR 65354 - Registration Review; Draft Malathion Human Health Risk Assessment; Notice of Availability | |
| 81 FR 65337 - Approval of Subzone Status; Michaels Stores Procurement Company, Inc., Hazleton, Pennsylvania | |
| 81 FR 65315 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the Omaha Lead Superfund Site | |
| 81 FR 65463 - Submission for OMB Review; Comment Request | |
| 81 FR 65356 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated Authority | |
| 81 FR 65357 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 81 FR 65358 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 81 FR 65347 - Submission for OMB Review; Comment Request | |
| 81 FR 65349 - DOE/NSF Nuclear Science Advisory Committee | |
| 81 FR 65349 - Environmental Management Site-Specific Advisory Board, Oak Ridge Reservation | |
| 81 FR 65348 - Methane Hydrate Advisory Committee; Meeting Notice | |
| 81 FR 65305 - Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; Quota Transfer | |
| 81 FR 65413 - New Postal Products | |
| 81 FR 65359 - Agency Forms Undergoing Paperwork Reduction Acct Review | |
| 81 FR 65411 - Certain Sleep-Disordered Breathing Treatment Mask Systems and Components Thereof; Institution of Investigation | |
| 81 FR 65309 - Production or Disclosure of Records, Information and Employee Testimony in Legal Proceedings | |
| 81 FR 65305 - Fisheries of the Exclusive Economic Zone Off Alaska; Shortraker Rockfish in the Central Regulatory Area of the Gulf of Alaska | |
| 81 FR 65361 - Renewal of Charter for the Advisory Committee on Organ Transplantation | |
| 81 FR 65461 - Reporting and Recordkeeping Requirements Under OMB Review | |
| 81 FR 65281 - USAID Sovereign Loan Guarantees-Standard Terms and Conditions | |
| 81 FR 65307 - Horse Protection; Licensing of Designated Qualified Persons and Other Amendments | |
| 81 FR 65351 - Aircraft Service International Group, Inc., American Airlines, Inc., Delta Air Lines, Inc., Hookers Point Fuel Facilities LLC, Southwest Airlines Co., United Aviation Fuels Corporation, United Parcel Service, Inc. v. Central Florida Pipeline LLC, Kinder Morgan Liquid Terminals LLC; Notice of Complaint | |
| 81 FR 65351 - Combined Notice of Filings | |
| 81 FR 65350 - Combined Notice of Filings #1 | |
| 81 FR 65335 - Agenda and Notice of Public Meeting of the Maryland Advisory Committee | |
| 81 FR 65378 - Final Flood Hazard Determinations | |
| 81 FR 65379 - Final Flood Hazard Determinations | |
| 81 FR 65358 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 81 FR 65352 - Notice of Availability of Three Updated Chapters in the Environmental Protection Agency's Air Pollution Control Cost Manual | |
| 81 FR 65405 - Information Collection Activities: Application for Permit To Modify (APM) and Supporting Documentation; Proposed Collection; Comment Request | |
| 81 FR 65399 - Information Collection Activities: Application for Permit Drill (APD, Revised APD), Supplemental APD Information Sheet, and All Supporting Documentation; Proposed Collection; Comment Request | |
| 81 FR 65403 - Information Collection Activities: Open and Nondiscriminatory Access to Oil and Gas Pipelines Under the Outer Continental Shelf Lands Act; Proposed Collection; Comment Request | |
| 81 FR 65367 - National Offshore Safety Advisory Committee | |
| 81 FR 65392 - Notice of Public Meetings, BLM Alaska Resource Advisory Council and Associated Subcommittee | |
| 81 FR 65286 - Authority To Solicit Gifts and Donations | |
| 81 FR 65313 - Authority To Solicit Gifts and Donations; Withdrawal | |
| 81 FR 65395 - Information Collection Activities: Platforms and Structures; Proposed Collection; Comment Request | |
| 81 FR 65412 - Information Collection: NRC Form 327, “Special Nuclear Material (SNM) and Source Material (SM) Physical Inventory Summary Report,” and NUREG/BR-0096, “Instructions and Guidance for Completing Physical Inventory” | |
| 81 FR 65462 - Twentieth RTCA SC-223 Aeronautical Mobile Airport Communication System Plenary Calling Notice | |
| 81 FR 65462 - Thirty Second RTCA SC-213 Enhanced Flight Vision Systems/Synthetic Vision Systems (EFVS/SVS) | |
| 81 FR 65411 - Notice of Information Collection | |
| 81 FR 65283 - Drawbridge Operation Regulation; Red River, Alexandria, LA | |
| 81 FR 65284 - Safety Zone; Columbia River, Sand Island, WA | |
| 81 FR 65364 - Prospective Grant of Exclusive Patent License: Development of an Antibody-Drug Conjugate for Use in PhotoImmunoTherapy | |
| 81 FR 65365 - National Institute of Allergy And Infectious Diseases; Notice of Closed Meeting | |
| 81 FR 65365 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
| 81 FR 65364 - National Cancer Institute; Notice of Meeting | |
| 81 FR 65366 - Center for Scientific Review; Notice of Closed Meetings | |
| 81 FR 65363 - Center for Scientific Review; Notice of Closed Meetings | |
| 81 FR 65362 - National Institute of Neurological Disorders and Stroke; Notice of Closed Meetings | |
| 81 FR 65365 - National Institute of Neurological Disorders and Stroke; Notice of Closed Meeting | |
| 81 FR 65365 - National Institute of Mental Health; Cancellation of Meeting | |
| 81 FR 65367 - National Institute of General Medical Sciences; Notice of Closed Meeting | |
| 81 FR 65362 - National Institute of General Medical Sciences; Notice of Closed Meetings | |
| 81 FR 65367 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of Closed Meetings | |
| 81 FR 65359 - Technical Electronic Product Radiation Safety Standards Committee; Notice of Meeting | |
| 81 FR 65343 - Privacy Act of 1974; System of Records | |
| 81 FR 65391 - Renewal of Approved Information Collection; OMB Control No. 1004-0009 | |
| 81 FR 65393 - Information Collection Request Sent to the Office of Management and Budget (OMB) for Approval; National Park Service Lost and Found Report | |
| 81 FR 65345 - Strategic Environmental Research and Development Program, Scientific Advisory Board; Notice of Federal Advisory Committee Meeting | |
| 81 FR 65347 - Strategic Environmental Research and Development Program, Scientific Advisory Board; Notice of Federal Advisory Committee Meeting | |
| 81 FR 65414 - Clarifying Current Roles and Responsibilities Described in the Coordinated Framework for the Regulation of Biotechnology | |
| 81 FR 65279 - Medical Devices; Ophthalmic Devices; Classification of Strabismus Detection Device | |
| 81 FR 65394 - Information Collection Request Sent to the Office of Management and Budget (OMB) for Approval; Reporting and Recordkeeping for Snowcoaches and Snowmobiles, Yellowstone National Park | |
| 81 FR 65324 - Endangered and Threatened Wildlife and Plants; Endangered Species Status for Rusty Patched Bumble Bee | |
| 81 FR 65356 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 81 FR 65369 - Individual Assistance Declarations Factors Guidance | |
| 81 FR 65380 - Changes in Flood Hazard Determinations | |
| 81 FR 65460 - Northern Lights Fund Trust and Dearborn Capital Management, LLC; Notice of Application | |
| 81 FR 65415 - Self-Regulatory Organizations; The Options Clearing Corporation; Order Approving Proposed Rule Change, as Modified by Amendment No. 1, Concerning Enhancements to The Options Clearing Corporation's Governance Arrangements | |
| 81 FR 65458 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7.35P (Auctions) Regarding Indicative Match Price | |
| 81 FR 65442 - Self-Regulatory Organizations; Chicago Stock Exchange, Inc.; Notice of Filing of Proposed Rule Change To Adopt the CHX Liquidity Taking Access Delay | |
| 81 FR 65431 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 2 to a Proposed Rule Change To List and Trade Shares of the Global Currency Gold Fund Under NYSE Arca Equities Rule 8.201, and Order Instituting Proceedings To Determine Whether To Approve or Disapprove Proposed Rule Change, as Modified by Amendment No. 2 | |
| 81 FR 65304 - Radio Broadcasting Services; Eagle Butte, South Dakota | |
| 81 FR 65373 - Changes in Flood Hazard Determinations | |
| 81 FR 65389 - Senior Executive Service Performance Review Board | |
| 81 FR 65336 - Census Scientific Advisory Committee | |
| 81 FR 65383 - Changes in Flood Hazard Determinations | |
| 81 FR 65336 - National Advisory Committee | |
| 81 FR 65390 - Agency Information Collection Activities: DHS Civil Rights Compliance Form | |
| 81 FR 65368 - Louisiana; Amendment No. 5 to Notice of a Major Disaster Declaration | |
| 81 FR 65373 - Louisiana; Amendment No. 4 to Notice of a Major Disaster Declaration | |
| 81 FR 65463 - Hazardous Materials: Damaged, Defective, Recalled Lithium Cells or Batteries or Portable Electronic Devices | |
| 81 FR 65360 - Veterinary Feed Directive Common Format Questions and Answers; Guidance for Industry; Availability | |
| 81 FR 65313 - Air Plan Approval; TN; Revisions to the Knox County Portion of the TN SIP | |
| 81 FR 65286 - Air Plan Approval; Alabama and North Carolina; Interstate Transport-2010 NO2 | |
| 81 FR 65335 - Secretary's Advisory Committee on Animal Health; Intent To Reestablish | |
| 81 FR 65278 - Amendment of Class E Airspace, Ithaca, NY | |
| 81 FR 65267 - Amendment of Class D and E Airspace and Revocation of Class E Airspace; Sioux City, IA | |
| 81 FR 65274 - Revocation of Class E Airspace; Alliance, NE; and Amendment of Class E Airspace for the Following Nebraska Towns; Albion, NE; Alliance, NE; Gothenburg, NE; Holdrege, NE; Imperial, NE; Lexington, NE; and Millard Airport, Omaha, NE | |
| 81 FR 65276 - Amendment of Class D and E Airspace, and Revocation of Class E Airspace; Troy, AL | |
| 81 FR 65269 - Amendment of Class E Airspace, Truckee, CA | |
| 81 FR 65270 - Establishment of Class D and E Airspace; Brookshire, TX | |
| 81 FR 65265 - Airworthiness Directives; International Aero Engines AG Turbofan Engines | |
| 81 FR 65307 - Airworthiness Directives; The Boeing Company Airplanes | |
| 81 FR 65353 - Release of Draft Policy Assessment for the Review of the Primary National Ambient Air Quality Standards for Nitrogen Dioxide | |
| 81 FR 65319 - Appraisals and Valuations of Indian Property | |
| 81 FR 65296 - Federal Management Regulation (FMR); Transportation Payment and Audit | |
| 81 FR 65509 - Facility Guarantee Program | |
| 81 FR 65465 - Endangered and Threatened Wildlife and Plants; Endangered Status for Five Species From American Samoa | |
| 81 FR 65289 - Thiabendazole; Pesticide Tolerances |
Animal and Plant Health Inspection Service
Commodity Credit Corporation
Census Bureau
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Bureau of Safety and Environmental Enforcement
Fish and Wildlife Service
Land Management Bureau
National Park Service
Federal Aviation Administration
Pipeline and Hazardous Materials Safety Administration
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain International Aero Engines AG (IAE) V2500-A1 turbofan engines. This AD was prompted by a report of an uncontainment caused by a high-pressure turbine (HPT) seal release. This AD requires removing the HPT No. 4 bearing front seal seat, part numbers (P/Ns) 2A0066, 2A1998, and 2A3432, and the HPT No. 4 bearing rear seal seat, P/Ns 2A0067, 2A1999, and 2A3433, and replacing them with parts eligible for installation. This AD also requires inspecting the HPT rotor and stator assembly, and, if necessary, their replacement with parts that are eligible for installation. We are issuing this AD to prevent failure of the HPT stage 2 seals, uncontained HPT seal release, damage to the engine, and damage to the airplane.
This AD is effective October 27, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of October 27, 2016.
For service information identified in this final rule, contact International Aero Engines AG, 400 Main Street, East Hartford, CT 06118; phone: 800-565-0140; email:
You may examine the AD docket on the Internet at
Brian Kierstead, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7772; fax: 781-238-7199; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain IAE V2500-A1 turbofan engines. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (81 FR 21768, April 13, 2016) and the FAA's response to each comment.
Air India Ltd. (AIL) commented that the fracture of the HPT stage 2 seal is a known problem with the type design. AIL does not agree that the root cause of the failure is clogged No. 4 bearing seal seats. AIL finds that increases in oil consumption and/or vibration signature are precursors to failure of the HPT stage 2 seal. We interpret AIL's comment as a request to allow monitoring of oil consumption rate and vibration signature analysis instead of the requirements of this AD.
We disagree. We disagree with AIL's analysis of the unsafe condition because although other failure modes leading to fracture of the HPT stage 2 seal exist, the uncontained part release noted in the NPRM (81 FR 21768, April 13, 2016) was caused by blockage of the No. 4 bearing seal seat's anti-weep circuit. We disagree with allowing oil consumption monitoring and vibration signature analysis because they do not provide an acceptable level of safety for engines with seal seats processed using methods susceptible to oil blockage. We did not change this AD.
AIL commented that we should delay compliance to this AD until December 31, 2017. This additional time to comply with this AD would allow for minimal disruption to its fleet operations. AIL indicated that fleet safety would be maintained through engine oil consumption monitoring and vibration signature analysis.
We disagree. As noted in our previous comment response, oil consumption monitoring and vibration signature analysis do not provide an acceptable level of safety for engines with seal seats processed using methods susceptible to oil blockage. We did not change this AD.
AIL commented that the applicability of this AD should not be limited to the IAE V2500-A1 fleet.
We disagree. The applicability of this AD is limited to the IAE V2500-A1 engines with affected serial numbers because this population of engines has been identified as having been processed using methods that could lead to failure of the HPT stage 2 seals. We did not change this AD.
IAE and Airbus commented that we should include an end date of December 31, 2016, for compliance with this AD.
We disagree. Our analysis of the unsafe condition determined that blockage of the No. 4 bearing seal seat anti-weep grooves is a function of engine cycles rather than time in service. We therefore did not base compliance on a calendar date. We did not change this AD.
IAE and Airbus commented that not mandating oil monitoring and inspection of the turbine case weep-hole may increase risk to operators if they follow only the requirements of this AD. IAE indicated that this AD should match the compliance requirements of IAE SB V2500-ENG-72-0670, dated March 14, 2016.
We disagree. We find that the actions required by this AD adequately address the unsafe condition represented by the possibility of failure of the HPT stage 2 seals while not imposing unnecessary burdens on operators. We did not change this AD.
We revised the compliance section to allow installed No. 4 bearing front and rear seal seats to be returned to service following removal and refurbishment.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (81 FR 21768, April 13, 2016) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (81 FR 21768, April 13, 2016).
We reviewed IAE Non-Modification Service Bulletin (NMSB) V2500-ENG-72-0670, dated March 14, 2016. The NMSB identifies affected engines and provides guidance for replacing the No. 4 bearing front and rear seal seats and for inspecting the HPT rotor and stator assembly. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 0 engines installed on airplanes of U.S. registry. We estimate that it will take about 10 hours to perform the seal seat replacement. The average labor rate is $85 per hour. We also estimate the cost of No. 4 bearing front and rear seal seats to be $13,562. Based on these figures, we estimate the cost of this AD on U.S. operators to be $0.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 27, 2016.
None.
This AD applies to International Aero Engines AG (IAE) V2500-A1 turbofan engines with serial numbers listed under Planning Information, Effectivity Data in IAE Non-Modification Service Bulletin (NMSB) V2500-ENG-72-0670, dated March 14, 2016.
This AD was prompted by a report of an uncontainment caused by a high-pressure turbine (HPT) seal release. We are issuing this AD to prevent failure of the HPT stage 2 seal, uncontained HPT seal release, damage to the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Prior to accumulating 500 cycles in service after the effective date of this AD,
(i) Remove the No. 4 bearing front seal seat, part numbers (P/Ns) 2A0066, 2A1998, 2A3432; and the No. 4 bearing rear seal seat, P/Ns 2A0067, 2A1999, 2A3433, and replace with parts eligible for installation.
(ii) Inspect the HPT rotor and stator assembly. Use the Accomplishment
(2) For any parts that fail the inspection required by paragraph (e)(1)(ii) of this AD, before further flight, remove and replace with parts eligible for installation.
The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to:
For more information about this AD, contact Brian Kierstead, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7772; fax: 781-238-7199; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) International Aero Engines AG (IAE) Non-Modification Service Bulletin V2500-ENG-72-0670, dated March 14, 2016.
(ii) Reserved.
(3) For IAE service information identified in this AD, contact International Aero Engines AG, 400 Main Street, East Hartford, CT 06118; phone: 800-565-0140; email:
(4) 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.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies the Class D and E airspace areas at Sioux Gateway/Col. Bud Day Field, Sioux City, IA, due to the decommissioning of the Gateway non-directional radio beacon (NDB) and cancellation of the NDB approaches at the airport. The Class E airspace area designated as an extension is being removed as it is no longer needed. Advances in Global Positioning System (GPS) capabilities have made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the airport. This action also updates the geographic coordinates for Martin Field, NE., to coincide with the FAAs aeronautical database.
Effective 0901 UTC, January 5, 2017. 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 7400.11 and publication of conforming amendments.
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, 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 D and E airspace at Sioux Gateway/Col. Bud Day Field, Sioux City, IA.
On April 13, 2016, the FAA published in the
Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class E surface area airspace and Class E airspace extending upward from 700 feet above the surface at Sioux Gateway/Col. Bud Day Field, Sioux City, IA. The Class E airspace area designated as an extension also would be removed as the extension is no longer needed. After review, the FAA found that due to the decommissioning of the Gateway NDB, cancellation of the NDB approaches at the airport, advances in GPS capabilities, and implementation of RNAV procedures at Sioux Gateway/Col. Bud Day Field, the Class E airspace designated as a surface area no longer requires extensions and is reduced to within a 4.3-mile radius of the airport; the Class E airspace designated as an extension to the Class D or Class E surface area is removed; and the Class E airspace area extending upward from 700 feet above the surface at the airport is reduced from a 7-mile radius to a 6.8-mile radius, with the northwest extension increased from 3 miles to 3.9 miles each side of the Sioux City VORTAC 319° radial extending from the 6.8-mile radius to 14.4 miles vice 25.3 miles; the northwest extension remains unchanged 4 miles each side of the 001° bearing from the airport from the 6.8-mile radius to 12 miles. The extensions to the southeast and northwest on the Sioux City VORTAC 316° radial are no longer required. All modifications to the Class E airspace are in accordance with airspace requirements specified in FAA Joint Order 7400.2K. This action is necessary for the safety and management of IFR operations under standard instrument approach procedures at the airport. The geographic coordinates for Martin Field, South Sioux City, NE., are amended for the existing Class D and E airspace areas.
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 the surface to and including 3,600 feet MSL within a 4.3-mile radius of Sioux Gateway/Col. Bud Day Field, excluding that airspace within a 1-mile radius of South Sioux City, Martin Field. 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 4.3-mile radius of Sioux Gateway/Col. Bud Day Field, excluding that airspace within a 1-mile radius of the South Sioux City, Martin Field. This Class E 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.
That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of Sioux Gateway Airport/Col. Bud Day Field, and within 3.9 miles each side of the 319° radial of the Sioux City VORTAC extending from the 6.8-mile radius to 14.4 miles northwest of the VORTAC, and within 4 miles each side of the 001° bearing from Sioux Gateway Airport/Col. Bud Day Field extending from the 6.8-mile radius of the airport to 12 miles northwest of the airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E surface area airspace and modifies Class E airspace extending upward from 700 feet above the surface at Truckee-Tahoe Airport, Truckee, CA, to increase safety and enhance existing instrument flight rules (IFR) operations in the immediate vicinity of the airport.
Effective 0901 UTC, January 5, 2017. 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 7400.11 and publication of conforming amendments.
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.
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 controlled airspace at Truckee-Tahoe Airport, Truckee, CA.
On December 18, 2015, the FAA published in the
Class E airspace designations are published in paragraph 6002 and 6005, respectively, of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, 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 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E surface area airspace within a 4.2-mile radius of Truckee-Tahoe Airport, Truckee, CA. Also, this action modifies Class E airspace extending upward from 700 feet above the surface to within a 4.2-mile radius of the airport, with segments extending from the 4.2-mile radius to 19 miles north and 16.5 miles northwest of the airport, and removes reference to Homewood Seaplane Base, which is no longer operational.
Airspace modification is necessary to ensure the safety and management of standard instrument approach and departure procedures for IFR operations at the airport, with a minimum degree of airspace restriction.
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 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 the surface within a 4.2-mile radius of Truckee-Tahoe Airport.
That airspace extending upward from 700 feet above the surface within a 4.2-mile radius of Truckee-Tahoe Airport, and within 2 miles each side of the Truckee-Tahoe Airport 015° bearing extending from the 4.2-mile radius to 19 miles north of the airport, and within 2 miles each side of the airport 328° bearing extending from the 4.2-mile radius to 16.5 miles northwest of the airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class D airspace, Class E surface area airspace, and Class E airspace extending upward from 700 feet above the surface at Brookshire, TX, to accommodate the new air traffic control tower at Houston Executive Airport. The FAA is taking this action for the safe and efficient use of the airspace to contain Instrument Flight Rule (IFR) arrival and departure operations at the airport.
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 7400.11 and publication of conforming amendments.
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Raul Garza, Jr., Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: (817) 222-5874.
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 Houston Executive Airport, Brookshire, TX.
On March 28, 2016, the FAA published in the
The FAA received multiple comments from 150 commenters that have been grouped to reflect general subject areas. The groups are categorized as follows;
Fifty-one comments supported the proposal, as is, with a top of 2,500 feet MSL. The positive comments ranged from support of the proposal at 2,500 feet MSL to extending and expanding
(a) Confusing to have an air traffic control tower but no Class D airspace surrounding the airport. Establishing class D airspace on the FAA sectionals charts will better identify the air traffic control tower to our transient and overflying aircraft.
(b) The air traffic control tower will enhance the safety of the operations and support the continued growth of the airport. Standard clearance from Houston Executive Airport is to maintain heading to 2,000 feet. Don't want aircraft at 2,100 feet. Aircraft transitioning along I-10 are in the direct flight path of departing traffic off TME RWY 18. Aircraft flying over I-10 at 2,000 feet without communicating with the tower could easily result in mid-air collision with departing traffic.
(c) Limiting airspace to 2,000 feet will only encourage pilots to transition the airspace with no communication, which is dangerous.
(d) A few miles north of the airport the Class B airspace begins at 3,000 feet but the majority of the Class B area over the airport is 4,000 feet.
(e) Simply requesting a transition to the tower will make everyone aware of the transitioning aircraft.
(f) The airspace is usually congested with pilots landing or departing Houston Executive Airport or nearby airports and pilots flying VFR alongI-10 at 2,500 feet Class D ceiling is the ceiling pilots have been taught to fly.
(g) Should declare the full circle of 4 NM radius as Class D, including surface to 2,700 feet MSL as done at KHY, KAFW, KFWS, KADS.
(h) The rule if adopted would make the controlled airspace around Houston Executive Airport consistent with comparable towered airfields in the U.S. Sugarland and Conroe were given higher ceiling altitudes than 2,500 feet.
(i) Houston Executive Airport is only airport on the west side of Houston on the I-10 corridor with the ability to handle large cabin class aircraft and a runway length of 6,610 feet.
(j) Not true that having the top of the Class D airspace at 2,500 feet “squeezes VFR aircraft into a narrow band.” It is a simple matter to call Houston Executive Tower and coordinate a clearance to transit the Class D airspace or call Houston Approach and get a clearance to transit through the Class B airspace. Support for Class D Airspace, but radar is necessary.
Although the FAA initially considered a top altitude of 2,700 feet, based on feedback from the first informal meeting and considerations for the safe and efficient use of airspace, the FAA determined that 2,500 feet, as provided in 14 CFR 91.126, is an appropriate altitude for the operations at the airport based on further information received from informal meetings, radar operating practices, and surveillance equipment. The airspace was tailored to provide minimum inconvenience while optimizing safety. Radar equipment is not a requirement for a control tower. This particular tower is a Non Federal Contract Tower; the FAA is not responsible for providing this type of equipment. Currently, airport traffic activity does not meet the threshold for establishing a radar environment.
2.
Seventy-six comments opposed the 2,500-foot top and another 322 signed a late-filed petition opposing the altitude of 2,500 feet. This group of 398 did support the creation of the airspace if the top altitude was 2,000 feet MSL. They said reducing tower coordination with a 2,000-foot altitude, and allowing for more separation of airspace between Class B and Class D, would provide a greater and safer transition for aircraft flying along Houston's east/west corridor.
Some of the reasons for limiting top of airspace to 2,000 included:
(a) Other airports (DWH, HQZ, GKY, and SGR) have a top altitude of 2,000 feet.
(b) A 2,500 foot MSL will severely restrict approaches and departures at IWS.
(c) A 2,000 foot ceiling or lower could lessen the effect on the KIWS traffic located 12 NM E of TME, which has a high proportion of VFR and sport pilot traffic. Most IFR departures from KIWS (Runway 15) are cleared to enter controlled airspace heading 270 degrees at 2,000 feet.
(d) Industry standard for Class D is a tower with a 4-NM radius and 2,000 feet MSL.
(e) The most commonly used altitudes are around 1,500 feet; this ensures clearance along the entire route of class B at 2,000 feet and 1000 feet minimum altitude over densely populated terrain. It is also common for westbound traffic to stay just north of I-10 and east-bound traffic stays south of I-10. Much of this VFR traffic doesn't want to communicate with the KTME tower. The wisdom of providing only 500 feet of space between the top of class D and the base of Class B (3,000 feet MSL) within two Victor Airways is in question. By establishing the upper limit of the Class D Airspace to 2,000 feet MSL, pilots would have a 500-foot separation from traffic in both Class B and Class D airspace, instead of only 250 feet separation under the proposal.
3.
One commenter supported Class D airspace with an altitude of 1,700 feet.
4.
5.
Forty-eight comments were received as to this loss of airspace and to the creation of airspace above 2,000 feet as a safety issue, having a major impact on the VFR community. They commented that the east/west corridor along I-10 has long been a familiar route for VFR pilots transitioning through the airspace for the last thirty years; they enjoy the visual reference and not having to communicate with small airports at the accustomed altitude of 2,000 feet. Comments included:
(a) Compressing transient VFR traffic along I-10 corridor to 500′ vertically will increase risk of collision.
(b) Will make flying cross country more stressful.
(c) Proposed airspace is dangerous because it sits at the mouth or exit of the VFR corridor between the two huge Class B airspaces over Houston.
(d) KTME does not need Class D because it does not have a lot of traffic and it is not for the common good of all.
(e) Proposed airspace significantly reduces usable airspace for the majority to accommodate a few elite jets; Safety should be for the most pilots, not the richest. There are only a few IFR days where Class D might be beneficial; but there are many VFR flyers.
(f) Class D should not be implemented until tower existence is published.
(g) Will cause transition to South and cause flights and noise over residential areas of Katy, Cinco Ranch, and Brookshire. Should consider these alternatives: (1) No Class D; (2) Class D ceiling 1,500 AGL rather than 2,000 AGL; (3) Make southern border of Class D align with northern edge of I-10.
(h) VFR traffic will deviate around the south side putting west and east-bound traffic on potential collision course for the following reasons:
(1) By establishing Class D around KTME, this VFR traffic will choose to deviate around the south side of the proposed Class D. That will put west- and east-bound traffic on a potential collision course. Although in practice VFR traffic is often at 1,500′ even this far out west, it could fly at a higher altitude. However, even the Houston VFR flyway chart encourages VFR traffic to stay below 2,500′ in this area. Adhering to that recommended altitude would still require a deviation south around the proposed KTME Class-D, so the safety concern noted above still stands.
(2) VFR aircraft flying in opposite directions would normally have a 1,000 ft. separation between themselves (whole altitudes + 500 ft.). With only 1,500 foot above TME (2,500 ft to 4,000 ft) . . . what are the procedures for safe separation??? IFR are at the whole altitudes! So . . . If TME Class D has a ceiling of 2,500 ft, 2,600 ft to 3,900 ft is all that is left! In such a case. Only one VFR altitude is available [Eastbound: 3,500 ft] [FAR Part 91.159] and that leaves Westbound VFR traffic with dangerous choices. VFR traffic flying over TME at 2,100 with a 2,000 ft. corridor above TME is less likely than VFR traffic using 2,600 or 3,900 in a 1,500 ft. corridor. Westbound VFR won't have any option that will give them more than 400 ft. separation from Eastbound VFR or IFR traffic.
(i) Would have to drop 1,500 feet in order to land at West Houston Airport when coming from the West. Would we be better off with this traffic flying over Houston at 10,000 feet or around the Class B airspace?
(j) This would interfere with all the commercial flights coming into IAH and HOU.
(k) Directly effects VFR traffic on Victor airways.
(l) Rather than speak with the tower at KTME, aircraft will in all likelihood divert either north or south. This then increases over flights to X09 and the Gloster (1XO7) skydive location JIM MAIM.
(m) Eliminates practice area used by local pilots.
(n) IFR has no priority over VFR in uncontrolled airspace.
(o) Same result can be achieved by Class E controlled airspace to the ground, not just at nighttime like in this proposal, but for 24/24 instead of a daytime Class D. I would therefore propose to change the controlled airspace for KTME to Class E 24h instead of day Class D/Night Class E.
(p) IFR pilots could use Hobby.
(q) IFR pilots have the same obligation as VFR pilots to “See and Avoid” when in VMC.
(r) Aircraft diverting either north or south would put aircraft closer to the instrument approaches for KTME.
This airspace action is not expected to cause any potentially significant environmental impacts, including no significant noise impacts. No extraordinary circumstances exists that warrant preparation of an environmental assessment.
When operating in VFR weather conditions, it is the pilot's responsibility
6.
(a) A few miles north of the airport, the Class B airspace begins at 3,000 feet but the majority of the Class B area over the airport is 4,000 feet.
(b) Raising the top to meet the Class B further removes any confusion to transient traffic.
(c) TME, with its physical location near Houston's Corporate Energy Corridor and ample 6,610′ × 100′ runway, is attracting an ever growing number of larger and faster aircraft (turboprops and jets).
(d) Class D airspace tends to have less recreational flyers and experimental traffic that tend to increase immediate airport traffic congestion and noise with constant circling for touch and goes, etc.
7.
Five comments received supported the proposal of 2,500 feet if the airspace would be classified as Class E airspace.
14 CFR 91.127, Operating on or in the vicinity of an airport in Class E airspace, states:
(c)
8.
Thirty-one comments received rejected the proposal entirely. An immediate return to the status quo was requested based on the long standing operations in this area. Additionally, many commenters cited the east/west I-10 corridor and the compression of the VFR navigable air space in the northeast affected area as a concern. The majority of comments provided for an alternate choice of a top altitude of 2,000 feet.
9.
Twenty comments received concerned the compression of navigable airspace under Class B and Class D airspace around TME. Cited were safety concerns for VFR aircraft to squeeze into an already congested airspace. The concerns were departures of airports underneath the Class B, practice areas for student training, and the airspace compression along the east west I-10 corridor.
The tower at Houston Executive Airport is established and the Class D and E airspace areas are being provided according to federal regulations. The Class D proposal to reduce the allowed footprint of the airspace provides for safe and efficient use of airspace. Class D enhances safety by setting VFR weather minima specified in 14 CFR 91.155 and through the communications and other requirements in 14 CFR 91.129 (and 14 CFR 91.127 for E airspace). Once Class D airspace is charted, the information is accessible to all pilots. The FAA understands the concerns of the commenters. However, the FAA chose the upper limit of the airspace at 2,500 feet to establish higher weather minima for VFR aircraft, transitioning above the airspace thus restricting access to VFR flights in the airspace while IFR operations are in progress. VFR aircraft transitioning at 2,000 feet through the airspace will still be allowed to do so as long as radio communications are established with the tower prior to the aircraft entering the Class D airspace, and no additional conflicts with other airspace users arise.
Class D and Class E airspace designations are published in paragraph 5000, 6002, and 6005, respectively, of FAA Order 7400.11A dated August 3, 2016, and effective September 15, 2016, 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 7400.11A, airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class D airspace, and Class E surface area airspace extending upward from the surface to and including 2,500 feet MSL within a 4-mile radius of Houston Executive Airport, excluding that airspace west and northwest, to accommodate the establishment of an airport traffic control tower. This action reduces the allowed 4 nautical mile radius around Houston Executive Airport to assist the operators transitioning in and out of Sport Flyers Airport without the need of establishing radio communications with Houston Executive Airport. The proposed cutout also allows for accommodation for a private airstrip to the southwest of Houston Executive Airport. This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 also establishes Class E airspace extending upward from 700 feet or more above the surface of the earth within a 6.6-mile radius of Houston Executive Airport, to accommodate standard instrument approach procedures. Controlled airspace is needed for the safety and management of IFR operations at the airport.
Class D and E airspace areas are published in paragraph 5000, 6002, and 6005, respectively, of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, 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. 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 the surface to and including 2,500 feet MSL bounded by a line beginning at lat. 29°46′44″ N., long. 95°58′06″ W., to lat. 29°47′35″ N., long. 95°55′49″ W., to lat. 29°51′55″ N., long. 95°55′52″ W., thence clockwise along the 4-mile radius of Houston Executive Airport to the point of beginning. 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 Chart Supplement.
That airspace extending upward from the surface to and including 2,500 feet MSL bounded by a line beginning at lat. 29°46′44″ N., long. 95°58′06″ W., to lat. 29°47′35″ N., long. 95°55′49″ W., to lat. 29°51′55″ N., long. 95°55′52″ W., thence clockwise along the 4-mile radius of Houston Executive Airport, to the point of beginning. This Class E 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 Chart Supplement.
That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Houston Executive Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action removes Class E surface area airspace at Alliance Municipal Airport, Alliance, NE; and modifies Class E airspace extending upward from 700 feet above the surface at Albion Municipal Airport, Albion, NE; Alliance Municipal Airport, Alliance, NE; Quinn Field, Gothenburg,
Effective 0901 UTC, January 5, 2017. 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 7400.11A and publication of conforming amendments.
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, 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 removes Class E surface area airspace at Alliance Municipal Airport, Alliance, NE; and modifies Class E airspace extending upward from 700 feet above the surface at Albion Municipal Airport, Albion, NE; Alliance Municipal Airport; Quinn Field, Gothenburg, NE; Brewster Field Airport, Holdrege, NE; Imperial Municipal Airport, Imperial, NE; Jim Kelly Field, Lexington, NE; and Millard Airport, Omaha, NE.
On May 3, 2016, the FAA published in the
Class E airspace designations are published in paragraph 6002 and 6005, respectively, of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, 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.
This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 removes Class E surface area airspace at Alliance Airport, Alliance, NE., as the airspace is no longer needed. This action also modifies Class E airspace extending upward from 700 feet above the surface at the following airports:
Within a 6.7-mile radius of Albion Municipal Airport, Albion, NE., with segments extending from the 6.7-mile radius to 9,7 miles southeast, and 6.7 miles northwest, of the airport;
Within a 7.2-mile radius of Alliance Municipal Airport, Alliance, NE;
Within a 7.3-mile radius of Quinn Field, Gothenburg, NE., with segments extending from the 7.3-mile radius of the airport to 11.1 miles northeast, and 7.3 miles southwest, of the airport;
Within a 6.5-mile radius of Brewster Field Airport, Holdrege, NE;
Within a 6.5-mile radius of Imperial Municipal Airport, Imperial, NE;
Within a 6.5-mile radius of Jim Kelly Field, Lexington, NE;
And within a 6.7-mile radius of Millard Airport, Omaha, NE.
Airspace reconfiguration is necessary due to the decommissioning of NDBs, cancellation of NDB approaches, and implementation of RNAV procedures at the above airports for the safety and management of the standard instrument approach procedures for IFR operations at the airports. The geographic coordinates for Quinn Field, Imperial Municipal Airport, and Jim Kelly Field are updated to be in concert with the FAAs aeronautical database.
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
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 6.7-mile radius of Albion Municipal Airport, and within 2.6 miles each side of the 154° bearing from the airport extending from the 6.7-mile radius to 9.7 miles southeast of the airport, and within 3.7 miles each side of the 334° bearing from the airport extending from the 6.7-mile radius to 10.1 miles northwest from the airport.
That airspace extending upward from 700 feet above the surface within a 7.2-mile radius of Alliance Municipal Airport.
That airspace extending upward from 700 feet above the surface within an 7.3-mile radius of Quinn Field, and within 4 miles each side of the 030° bearing from the airport extending from the 7.3-mile radius to 11.1 miles northeast of the airport, and within 4 miles each side of the 218° bearing from the airport extending from the 7.3-mile radius to 10.5 miles southwest of the airport.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Brewster Field Airport.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Imperial Municipal Airport.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Jim Kelly Field.
That airspace extending upward from 700 feet above the surface within a 6.7-mile radius of Millard Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class D and E airspace, and removes Class E airspace designated as an extension at Troy Municipal Airport at N. Kenneth Campbell Field (formerly Troy Municipal Airport), Troy, AL. The Troy VHF Omnidirectional Radio Range (VOR) has been decommissioned, therefore Class E extension airspace is no longer needed, and new Standard Instrument Approach Procedures have been developed, requiring adjustments in Class D airspace and Class E airspace extending upward from 700 feet above the surface at the airport. This action enhances the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport. This action also updates the geographic coordinates of the airport and recognizes the name change of the airport.
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 7400.11 and publication of conforming amendments.
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
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
On June 21, 2016, the FAA published in the
Class D and Class E airspace designations are published in paragraphs 5000, 6004 and 6005, respectively, of FAA Order 7400.11A dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface within a 7.6-mile radius of Troy Municipal Airport at N. Kenneth Campbell Field and within 2-miles each side of a 070° bearing from the airport to 11.5-miles northeast of the airport, and within 2-miles each side of a 253° bearing from the airport to 11.3-miles southwest of the airport. Additionally, Class E airspace designated as an extension to Class D surface area is removed due to the decommissioning of the Troy VOR and cancellation of the VOR approaches. The geographic coordinates of the airport are amended to coincide with the FAAs aeronautical database. Also, this action recognizes the name change of Troy Municipal Airport at N. Kenneth Campbell Field (formerly Troy Municipal Airport).
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. 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 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 the surface to and including 2,900 feet MSL within a 5-mile radius of Troy Municipal Airport at N. Kenneth Campbell Field. This Class D airspace area is effective during 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 7.6-mile radius of Troy Municipal Airport at N. Kenneth Campbell Field and within 2-miles each side of a 070° bearing from the airport to 11.5-miles northeast of the airport, and within 2-miles each side of a 253° bearing from the airport to 11.3-miles southwest of the airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace Designated as an Extension at Ithaca Tompkins Regional Airport, Ithaca, NY, by updating the geographic coordinates of the Ithaca VHF omnidirectional range/distance measuring equipment, (VOR/DME), and the airport, as well as changing the airport name. This is an administrative change and does not affect the boundaries or operating requirements of the airspace.
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 7400.11 and publication of conforming amendments.
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
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 Ithaca Tompkins Regional Airport, Ithaca, NY.
In a review of the airspace for Ithaca Tompkins Regional Airport (formerly Tompkins County Airport), Ithaca, NY, the FAA found the airport name and geographic coordinates for the airport and the Ithaca VOR/DME, as published in FAA Order 7400.11A, Airspace Designations and Reporting Points, do not match the FAA's charting information for Class E Airspace Designated as an Extension to a Class D Surface Area.
Class E airspace designations are published in paragraph 6004 of FAA Order 7400.11A dated August 3, 2016, and effective September 15, 2016, 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 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace designated as an extension at Ithaca Tompkins Regional Airport, Ithaca, NY. A minor adjustment to the geographic coordinates of the airport and the Ithaca VOR/DME is made to be in concert with the FAA's aeronautical database, as well as a name change from Tompkins County Airport to Ithaca Tompkins Regional Airport.
This is an administrative change and does not affect the boundaries, or operating requirements of the airspace, therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will 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 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 the surface from the 4-mile radius of the Ithaca Tompkins Regional Airport to the 5.7-mile radius of the airport; clockwise from the 329° bearing to the 081° bearing from the airport; that airspace from the 4-mile radius of Ithaca Tompkins Regional Airport to the 8.7-mile radius of the airport extending clockwise from the 081° bearing to the 137° from the airport; that airspace from the 4-mile radius of Ithaca Tompkins Regional Airport; to the 6.6-mile radius of the airport, extending clockwise from the 137° bearing to the 170° bearing from the airport; that airspace from the 4-mile radius to the 5.7-mile radius of the Ithaca Tompkins Regional Airport, extending clockwise from the 170° bearing to the 196° bearing from the airport; and that airspace within 2.7 miles each side of the Ithaca VOR/DME 305° radial extending from the 4-mile radius of Ithaca Tompkins Regional Airport to 7.4 miles northwest of the Ithaca VOR/DME. This Class E airspace area is effective during specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be published continuously in the Airport/Facility Directory.
Food and Drug Administration, HHS.
Final order.
The Food and Drug Administration (FDA) is classifying the strabismus detection device into class II (special controls). The special controls that will apply to the device are identified in this order and will be part of the codified language for the strabismus detection device's classification. The Agency is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of the device.
This order is effective September 22, 2016. The classification was applicable on June 8, 2016.
Elvin Ng, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2431, Silver Spring, MD 20993-0002, 240-402-4662,
In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976 (the date of enactment of the Medical Device Amendments of 1976), generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval, unless and until the device is classified or reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807) of the regulations.
Section 513(f)(2) of the FD&C Act, as amended by section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144), provides two procedures by which a person may request FDA to classify a device under the criteria set forth in section 513(a)(1). Under the first procedure, the person submits a premarket notification under section 510(k) of the FD&C Act for a device that has not previously been classified and, within 30 days of receiving an order classifying the device into class III under section 513(f)(1) of the FD&C Act, the person requests a classification under section 513(f)(2). Under the second procedure, rather than first submitting a premarket notification under section 510(k) of the FD&C Act and then a request for classification under the first procedure, the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence and requests a classification under section 513(f)(2) of the FD&C Act. If the person submits a request to classify the device under this second procedure, FDA may decline to undertake the classification request if FDA identifies a legally marketed device that could provide a reasonable basis for review of substantial equivalence with the device or if FDA determines that the device submitted is not of “low-moderate risk” or that general controls would be inadequate to control the risks and special controls to mitigate the risks cannot be developed.
In response to a request to classify a device under either procedure provided by section 513(f)(2) of the FD&C Act, FDA shall classify the device by written order within 120 days. This classification will be the initial classification of the device.
On December 11, 2013, RebiScan, Inc., submitted a request for classification of the Pediatric Vision Scanner under section 513(f)(2) of the FD&C Act.
In accordance with section 513(f)(2) of the FD&C Act, FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1). FDA classifies devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the request, FDA determined that the device can be classified into class II with the establishment of special controls. FDA believes these special controls, in addition to general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on June 8, 2016, FDA issued an order to the requestor classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 886.1342.
Following the effective date of this final classification order, any firm submitting a premarket notification (510(k)) for a strabismus detection device will need to comply with the special controls named in this final order.
The device is assigned the generic name strabismus detection device, and it is identified as a prescription device designed to simultaneously illuminate
FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.
FDA believes that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of the safety and effectiveness.
Strabismus detection devices are not safe for use except under the supervision of a practitioner licensed by law to direct the use of the device. As such, the device is a prescription device and must satisfy prescription labeling requirements (see 21 CFR 801.109,
Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k), if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of the device. Therefore, this device type is not exempt from premarket notification requirements. Persons who intend to market this type of device must submit to FDA a premarket notification, prior to marketing the device, which contains information about the strabismus detection device they intend to market.
The Agency has determined under 21 CFR 25.34(b) 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 order refers to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding the quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.
Medical devices, Ophthalmic goods and services.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 886 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
(a)
(b)
(1) Clinical performance testing must demonstrate the device performs as intended under anticipated conditions of use. Testing must be conducted in a representative patient population and clinical setting for the indicated use. Demonstration of clinical performance must include assessment of sensitivity and specificity compared to a clearly defined reference standard (
(2) Non-clinical performance testing must demonstrate the device performs as intended under anticipated conditions of use. The following technical characteristics must be evaluated:
(i) Verification of lowest detectable amount of deviation; and
(ii) Validation of the accuracy and precision at the lowest detectable amount of deviation.
(3) Software verification, validation, and hazard analysis must be performed.
(4) Optical radiation safety testing must demonstrate the device is safe per the directions for use.
(5) Performance testing must demonstrate the electromagnetic compatibility of the device.
(6) Performance testing must demonstrate the electrical safety of the device.
(7) Labeling must include the following:
(i) Summaries of non-clinical and clinical performance testing;
(ii) Instructions on how to correctly use and maintain the device;
(iii) Instructions and explanation of all user-interface components; and
(iv) Information related to electromagnetic compatibility and optical radiation classification.
Agency for International Development (USAID).
Final rule.
This regulation prescribes the procedures and standard terms and conditions applicable to loan guarantees to be issued for the benefit of Ukraine.
Effective September 21, 2016.
D. Bruce McPherson, Office of the General Counsel, U.S. Agency for International Development, Washington, DC 20523-6601; tel. 202-712-1611, fax 202-216-3055.
Pursuant to the authority of section 7034(o)(1) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2016 (Div. K, Pub. L. 114-113), the United States of America, acting through the U.S. Agency for International Development, may issue certain loan guarantees applicable to sums borrowed by Ukraine (the “Borrower”), not exceeding an aggregate total of U.S. $1 billion in principal amount. Upon issuance, the loan guarantees shall ensure the Borrower's repayment of 100% of principal and interest due under such borrowings and the full faith and credit of the United States of America shall be pledged for the full payment and performance of such guarantee obligations.
This rulemaking document is not subject to rulemaking under 5 U.S.C. 553 or to regulatory review under Executive Order 12866 because it involves a foreign affairs function of the United States. The provisions of the Paperwork Reduction Act (44 U.S.C. 3501
Foreign aid, Foreign relations, Guaranteed loans, Loan programs-foreign relations.
Section 7034(o)(1) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2016 (Div. K, Pub. L. 114-113).
The purpose of the regulations in this part is to prescribe the procedures and standard terms and conditions applicable to loan guarantees issued for the benefit of the Borrower, pursuant to section 7034(o)(1) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2016 (Div. K, Pub. L. 114-113) (the “Authority”). The loan guarantees will be issued as provided herein pursuant to a Loan Guarantee Agreement signed on June 3, 2016, between the United States of America and Ukraine (the “Loan Guarantee Agreement”). The loan guarantee will apply to sums borrowed during a period beginning on the date that the Loan Guarantee Agreement enters into force and ending thirty days after such date, not exceeding an aggregate total of one billion United States Dollars ($1,000,000,000) in principal amount. The loan guarantees shall ensure the Borrower's repayment of 100% of principal and interest due under such borrowings. The full faith and credit of the United States of America is pledged for the full payment and performance of such guarantee obligations.
Wherever used in the standard terms and conditions set out in this part:
(1) Defaulted Payment unpaid as of the Date of Application;
(2) Further Guaranteed Payments unpaid as of the Date of Application; and
(3) Interest accrued and unpaid at the Interest Rate(s) specified in the Eligible Note(s) on the Defaulted Payment and Further Guaranteed Payments, in each case from the date of default with respect to such payment to and including the date on which full payment thereof is made to the Noteholder.
Subject to the terms and conditions set out in this part, the United States of America, acting through USAID, guarantees to Noteholders the Borrower's repayment of 100% of principal and interest due on Eligible Notes. Under this Guarantee, USAID agrees to pay to any Noteholder compensation in Dollars equal to such Noteholder's Loss of Investment under its Eligible Note; provided, however, that no such payment shall be made to any Noteholder for any such loss arising out of fraud or misrepresentation for which such Noteholder is responsible or of which it had knowledge at the time it became such Noteholder. This Guarantee shall apply to each Eligible Note registered on the Note Register.
(a) Eligible Notes only are guaranteed hereunder. Notes in order to achieve Eligible Note status:
(1) Must be signed on behalf of the Borrower, manually or in facsimile, by a duly authorized representative of the Borrower;
(2) Must contain a certificate of authentication manually executed by the Fiscal Agent whose appointment by the Borrower is consented to by USAID in the Fiscal Agency Agreement; and
(3) Shall be approved and authenticated by USAID by either:
(i) The affixing by USAID on the Notes of a guarantee legend incorporating these Standard Terms and Conditions signed on behalf of USAID by either a manual signature or a facsimile signature of an authorized representative of USAID; or
(ii) The delivery by USAID to the Fiscal Agent of a guarantee certificate incorporating these Standard Terms and Conditions signed on behalf of USAID by either a manual signature or a facsimile signature of an authorized representative of USAID.
(b) The authorized USAID representatives for purposes of the regulations in this part whose signature(s) shall be binding on USAID shall include the USAID Chief and Deputy Chief Financial Officer; Assistant Administrator and Deputy Assistant Administrator, Bureau for Economic Growth, Education and Environment; Assistant Administrator, Bureau for Europe and Eurasia; Director and Deputy Director, Office of Development Credit; and such other individual(s) designated in a certificate executed by an authorized USAID Representative and delivered to the Fiscal Agent. The certificate of authentication of the Fiscal Agent issued pursuant to the Fiscal Agency Agreement shall, when manually executed by the Fiscal Agent, be conclusive evidence binding on USAID that an Eligible Note has been duly executed on behalf of the Borrower and delivered.
After issuance of a Guarantee, that Guarantee will be an unconditional, full faith and credit obligation of the United States of America, and will not be affected or impaired by any subsequent condition or event. This non-impairment of the guarantee provision shall not, however, be operative with respect to any loss arising out of fraud or misrepresentation for which the claiming Noteholder is responsible or of which it had knowledge at the time it became a Noteholder. Moreover, the Guarantee shall not be affected or impaired by:
(a) Any defect in the authorization, execution, delivery or enforceability of any agreement or other document executed by a Noteholder, USAID, the Fiscal Agent or the Borrower in connection with the transactions contemplated by this Guarantee; or
(b) The suspension or termination of the program pursuant to which USAID is authorized to guarantee the Eligible Notes.
A Noteholder may assign, transfer or pledge an Eligible Note to any Person. Any such assignment, transfer or pledge shall be effective on the date that the name of the new Noteholder is entered on the Note Register. USAID shall be entitled to treat the Persons in whose names the Eligible Notes are registered as the owners thereof for all purposes of this Guarantee and USAID shall not be affected by notice to the contrary.
Failure of the Fiscal Agent to perform any of its obligations pursuant to the Fiscal Agency Agreement shall not impair any Noteholder's rights under this Guarantee, but may be the subject of action for damages against the Fiscal Agent by USAID as a result of such failure or neglect. A Noteholder may appoint the Fiscal Agent to make demand for payment on its behalf under this Guarantee.
At any time after an Event of Default, as this term is defined in an Eligible Note, any Noteholder hereunder, or the Fiscal Agent on behalf of a Noteholder hereunder, may file with USAID an Application for Compensation in the form provided in appendix A to this part. USAID shall pay or cause to be paid to any such Applicant any compensation specified in such Application for Compensation that is due to the Applicant pursuant to the Guarantee as a Loss of Investment not later than the Guarantee Payment Date. In the event that USAID receives any other notice of an Event of Default, USAID may pay any compensation that is due to any Noteholder pursuant to a Guarantee, whether or not such Noteholder has filed with USAID an Application for Compensation in respect of such amount.
Eligible Notes shall not be subject to acceleration, in whole or in part, by USAID, the Noteholder or any other
If a Noteholder shall, as a result of USAID paying compensation under this Guarantee, receive an excess payment, it shall refund the excess to USAID.
In the event of payment by USAID to a Noteholder under this Guarantee, USAID shall be subrogated to the extent of such payment to all of the rights of such Noteholder against the Borrower under the related Note.
After payment by USAID to an Applicant hereunder, USAID shall have exclusive power to prosecute all claims related to rights to receive payments under the Eligible Notes to which it is thereby subrogated. If a Noteholder continues to have an interest in the outstanding Eligible Notes, such a Noteholder and USAID shall consult with each other with respect to their respective interests in such Eligible Notes and the manner of and responsibility for prosecuting claims.
No Noteholder will consent to any change or waiver of any provision of any document contemplated by this Guarantee without the prior written consent of USAID.
Any controversy or claim between USAID and any Noteholder arising out of this Guarantee shall be settled by arbitration to be held in Washington, DC in accordance with the then prevailing rules of the American Arbitration Association, and judgment on the award rendered by the arbitrators may be entered in any court of competent jurisdiction.
Any communication to USAID pursuant to this Guarantee shall be in writing in the English language, shall refer to the Ukraine Loan Guarantee Number inscribed on the Eligible Note and shall be complete on the day it shall be actually received by USAID at the Office of Development Credit, Bureau for Economic Growth, Education and Environment, United States Agency for International Development, Washington, DC 20523-0030. Other addresses may be substituted for the above upon the giving of notice of such substitution to each Noteholder by first class mail at the address set forth in the Note Register.
This Guarantee shall be governed by and construed in accordance with the laws of the United States of America governing contracts and commercial transactions of the United States Government.
Ref: Guarantee dated as of ___, 20_:
Gentlemen: You are hereby advised that payment of $___(consisting of $ ___ of principal, $___ of interest and $___ in Further Guaranteed Payments, as defined in § 240.02 of the Standard Terms and Conditions of the above-mentioned Guarantee) was due on ___, 20_, on $___ Principal Amount of Notes issued by Ukraine (the “Borrower”) held by the undersigned. Of such amount $___ was not received on such date and has not been received by the undersigned at the date hereof. In accordance with the terms and provisions of the above-mentioned Guarantee, the undersigned hereby applies, under § 240.08 of said Guarantee, for payment of $___, representing $___, the Principal Amount of the presently outstanding Note(s) of the Borrower held by the undersigned that was due and payable on ___ and that remains unpaid, and $___, the Interest Amount on such Note(s) that was due and payable by the Borrower on ___ and that remains unpaid, and $___ in Further Guaranteed Payments,
All capitalized terms herein that are not otherwise defined shall have the meanings assigned to such terms in the Standard Terms and Conditions of the above-mentioned Guarantee.
Coast Guard, DHS.
Notice of deviation from drawbridge regulations.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the US 165 (Jackson Street) Drawbridge across the Red River, mile 88.6, at Alexandria, Louisiana. The deviation is necessary to allow the bridge owner time to adjust the new pinion bearings that are essential to the continued safe operation of the drawbridge. This deviation allows the bridge to remain in the closed-to-navigation position.
This deviation is effective without actual notice from September 22, 2016 until 6 p.m., September 30, 2016. For the purposes of enforcement, actual notice will be used from 6 a.m. to 6 p.m., each day, from September 26, 2016 until September 30, 2016.
The docket for this deviation, (USCG-2016-0890) is available at
If you have questions on this temporary deviation, call or email Eric A. Washburn, Bridge Administrator, Western Rivers, Coast Guard; telephone 314-269-2378, email
The Louisiana Department of Transportation and Development requested a temporary deviation for the US 165 (Jackson Street) Drawbridge, across the Red River, mile 88.6, at Alexandria, Louisiana. It has a vertical clearance of 40.0 feet above normal pool in the closed-to-navigation position. The US 165 (Jackson Street) Drawbridge currently operates in accordance with 33 CFR 117.491(b).
This deviation period is from 6 a.m. to 6 p.m., each day, from September 26, 2016 to September 30, 2016 when the draw span will remain in the closed-to-navigation position. During this time the bridge owner will adjust the new pinion bearings that are essential to the continued safe operation of the drawbridge. Navigation on the waterway consists primarily of commercial tows and recreational watercraft and will not be significantly impacted. This temporary deviation has been coordinated with waterway users. No objections were received.
The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass this section of the Red River. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so the vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for the navigable waters of the Columbia River within a 500-yard radius of the small boat “Nessy,” while in the area of Sand Island, near Chinook, WA, and all involved associated vessels in support of the Double-Crested Cormorant removal operations conducted by the U.S. Army Corps of Engineers and U.S. Department of Agriculture Wildlife Services. This regulation prohibits persons and vessels from being in the safety zone unless authorized by the Captain of the Port Columbia River, or a designated representative.
This rule is effective from September 21, 2016 through October 21, 2016.
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 Mr. Kenneth Lawrenson, Waterways Management Division, Marine Safety Unit Portland, U.S. Coast Guard; telephone 503-240-9319, email
The U.S. Army Corps of Engineers and U.S. Department of Agriculture Wildlife Services notified the Coast Guard that they intend to conduct federally permitted removal operations of the Double-Crested Cormorant starting September 21, 2016. In response, on August 23, 2016, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Columbia River, Sand Island, WA 81 FR 57507. There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this safety zone. During the comment period that ended September 12, 2016 we received no comments.
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. Coast Guard Captains of the Port are granted authority to establish safety zones in 33 CFR 1.05-1(f) for safety purposes as described in 33 CFR part 165.
The Army Corps of Engineers and U.S. Department of Agriculture Wildlife Services will conduct a federally permitted removal operation of the Double-Crested Cormorant starting September 21, 2016. This operation will involve the use of firearms and live ammunition. The Captain of the Port Sector Columbia River (COTP) has determined that potential hazards associated with the removal operation will be a safety concern for anyone within a 500-yard radius of the small boat “Nessy,” while in the area encompassing these points: 46°15′45″ N., 123°59′39″ W.; 46°15′24″ N., 123°59′42″ W.; 46°13′32″ N., 123°57′18″ W.; 46°15′9″ N., 123°55′24″ W.; and 46°15′54″ N., 123°58′6″ W., and any associated support vessel(s). The safety zone is needed to protect personnel and vessels in the navigable waters within the safety zone during the removal operations.
As noted above, we received no comments on our NPRM published August 23, 2016. There are two changes in the regulatory text of this rule from the proposed rule in the NPRM. The change in paragraph (a) of the regulation is non-substantive and clarifies the language that describes the area that is designated a safety zone. The change in paragraph (c) of the regulation updates the language regarding assistance from state law enforcement to align with the statute cited.
This rule establishes a safety zone from September 21, 2016, through October 21, 2016. The safety zone will cover all navigable waters of the Columbia River within 500 yards of the small boat “Nessy,” and all involved associated support vessels being used by personnel during the removal operation, conducted in the area encompassed by these points: 46°15′45″ N., 123°59′39″ W.; 46°15′24″ N., 123°59′42″ W.; 46°13′32″ N., 123°57′18″ W.; 46°15′9″ N., 123°55′24″ W.; and 46°15′54″ N., 123°58′6″ W. The 500 yard radius area of the safety zone is intended to protect persons and vessels from the dangerous combined effects of live gunfire, unpredictable animal behavior, and a highly dynamic marine environment characterized by strong tides, river currents and wind. This safety zone will be enforced only when the small boat “Nessy,” and all involved associated support vessels, are conducting the removal operations, which will be three
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, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around this safety zone which would impact a small designated area of the Columbia River in the area encompassing these points: 46°15′45″ N., 123°59′39″ W.; 46°15′24″ N., 123°59′42″ W.; 46°13′32″ N., 123°57′18″ W.; 46°15′9″ N., 123°55′24″ W.; and 46°15′54″ N., 123°58′6″ W. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter 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 received no comments from the Small Business Administration on this rulemaking. 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 reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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 an 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 four weeks, for three days a week, that will prohibit entry within 500 yards of the small boat “Nessy” and all involved associated support vessels, while in the area encompassing these points: 46°15′45″ N., 123°59′39″ W.; 46°15′24″ N., 123°59′42″ W.; 46°13′32″ N., 123°57′18″ W.; 46°15′9″ N., 123°55′24″ W.; and 46°15′54″ N., 123°58′6″ W., while personnel are conducting the removal operations of the Double-Crested Cormorant. 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
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
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Department of Veterans Affairs.
Direct final rule; confirmation of effective date.
On July 11, 2016, the Department of Veterans Affairs (VA) published a direct final rule amending its regulation that governs soliciting contributions from the public by officials and employees of NCA, or authorizing the use of officials' or employees' names, name of the Secretary, or the name of VA for the purpose of making a gift or donation to VA. VA received two supportive comments and no adverse comments concerning the direct final rule and its companion substantially identical proposed rule published in the
The effective date of September 9, 2016, for the direct final rule published July 11, 2016, 81 FR 44792, is confirmed.
Thomas Howard, Chief of Staff, National Cemetery Administration (NCA), Department of Veterans Affairs, (40A), 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-6215. (This is not a toll-free number.)
In a direct final rule published in the
Under the direct final rule procedures that were described in 81 FR 44827 and 81 FR 44792, the direct final rule became effective on September 9, 2016, because no adverse comments were received within the comment period. In a companion document in this issue of the
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 September 16, 2016, for publication.
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is approving a revision to the North Carolina SIP, submitted by the
This rule is effective on October 24, 2016.
EPA has established a docket for these actions under Docket Identification No EPA-R04-OAR-2016-0209. All documents in the docket are listed on the
Sean Lakeman of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Lakeman can be reached by telephone at (404) 562-9043 or via electronic mail at
By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Sections 110(a)(1) and (2) require states to address basic SIP elements such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for infrastructure SIPs. Section 110(a)(2) lists specific elements that states must meet for the infrastructure SIP requirements related to a newly established or revised NAAQS. The contents of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS.
Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). EPA sometimes refers to these two prongs conjointly as the “good neighbor” provision of the CAA. The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) and from interfering with measures to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.
In a notice of proposed rulemaking (NPRM) published on August 1, 2016 (81 FR 50409), EPA proposed to approve North Carolina's March 24, 2016, SIP submission and the portions of Alabama's December 9, 2015, SIP submission addressing interstate transport requirements for the 2010 NO
As described previously, EPA is approving North Carolina's March 24, 2016, SIP revision and the portions of Alabama's December 9, 2015, SIP revision addressing prongs 1 and 2 of CAA section 110(a)(2)(D)(i) for the 2010 1-hour NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• Are not “significant regulatory actions” 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);
• do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• are 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
• do not contain any unfunded mandate or significantly or uniquely
• do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• are 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
• do 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).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of these actions must be filed in the United States Court of Appeals for the appropriate circuit by November 21, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of these actions 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. These actions may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
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In rule document 2016-21338 beginning on page 61136 in the issue of Tuesday, September 6, 2016, make the following correction:
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of thiabendazole in or on the legume vegetable group 6 and foliage of legume vegetable group 7. Syngenta Crop Protection requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). This regulation also assigns an expiration date to existing tolerances for bean, dry, seed at 0.1 part per million (ppm) and soybean at 0.1 ppm as well as removes a threshold of regulation determination for seed treatment use of thiabendazole on dry pea (including field pea, pigeon pea, chickpea or lentil). Lastly, this regulation establishes a time-limited tolerance on sweet potato. The time-limited tolerance is in response to EPA's granting of an emergency exemption under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The time-limited tolerance will expire and be revoked on December 31, 2019.
This regulation is effective September 22, 2016. Objections and requests for hearings must be received on or before November 21, 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-2015-0554, is available at
Michael Goodis, 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-2015-0554 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 November 21, 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-2015-0554, by one of the following methods:
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Additional instructions on commenting or visiting the dock et, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA has modified levels at which the tolerances are being established by this document. The reason for these changes are explained in Unit IV.D.
In 2008, EPA established a rule codifying its determination that the use of thiabendazole as a seed treatment for dry pea using a maximum application rate of 0.075 pound of active ingredient per 100 pounds of seed did not require a tolerance because residues were below the Agency's threshold of regulation. (73 FR 1976 (Jan. 11, 2008); see 40 CFR 180.2010). The new tolerances for residues of thiabendazole on crop group 6 legume vegetable commodities, including dry pea, and on crop group 7, foliage of legume vegetable commodities, which includes vines and hay from the legume vegetables that the Agency is establishing make the existing threshold of regulation determination unnecessary. The new tolerances cover residues on these commodities resulting from new seed treatment uses that allow for higher application rates and thus residues associated uses covered by the threshold of regulation determination are covered by the new tolerances. As a result, the Agency is removing this determination from section 180.2010.
In response to a crisis exemption request and authorization of a specific exemption request filed under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) on behalf of the North Carolina Department of Agriculture and Consumer Services for the emergency use of thiabendazole to control black rot disease on sweet potato, EPA is establishing pursuant to FFDCA section 408(l)(6) time-limited tolerances for the use of thiabendazole on sweet potato at 10 ppm with an expiration date of December 31, 2019.
As part of its evaluation of the emergency exemption application, EPA assessed the potential risks presented by residues of thiabendazole on sweet potato. In doing so, EPA considered the safety standard in section 408(b)(2) of FFDCA, and the Agency decided that the necessary tolerance under section 408(l)(6) of FFDCA would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in section 408(l)(6) of FFDCA. Although this time-limited tolerance expires and is revoked on December 31, 2019, under section 408(l)(5) of FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on sweet potato after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by the time-limited tolerance at the time of that application. EPA will take action to revoke this time-limited tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.
Because this time-limited tolerance is being approved under emergency conditions, EPA has not made any decisions whether thiabendazole meets FIFRA's registration requirements for use in or on sweet potato or whether a permanent tolerance for this use would be appropriate. Under these circumstances, EPA does not believe that this time-limited tolerances serves as a basis for registration of thiabendazole by a State for Special Local Needs under FIFRA section 24(c). Nor does this tolerance serve as the basis for persons in any State other than North Carolina to use this pesticide on sweet potato under FIFRA section 18 absent the issuance of an emergency exemption applicable within that State. For additional information regarding the emergency exemption for thiabendazole, contact the Agency's Registration Division at the address provided under
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 assessment 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 thiabendazole including exposure resulting from the tolerances, including the time-limited tolerance, established by this action. EPA's assessment of exposures and risks associated with thiabendazole 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 thyroid and liver (centrilobular hypertrophy) are the primary target organs of thiabendazole toxicity. Thiabendazole produced a treatment related increase in absolute and relative liver weights in both sexes in a chronic dog study. Other treatment related effects reported were histopathological changes in kidneys (hyperplasia of transitional epithelium, tubular degeneration) and spleen (congested and pigmented) in rats. Additional toxic effects observed in these studies included decreases in body weight and/or food consumption. The available
In the adult animal, effects on the thyroid following thiabendazole exposure were observed at a dose lower than the neurotoxicity dose observed in the ACN. There are no thiabendazole data with which to determine whether this is also the case in the fetus/postnatal animal. Based on a weight of evidence (WOE) approach considering all the available hazard and exposure information for thiabendazole, the Agency concluded that a developmental thyroid toxicity study is required since there is clear evidence of thyroid toxicity in adult animals and thus a concern for potential toxicity during pregnancy, infancy and childhood. The developmental thyroid toxicity study will better address this concern than a developmental neurotoxicity study. In an immunotoxicity study, thiabendazole produced significant decreased spleen activity at the highest dose tested (5,000 ppm equivalent to 1,027 mg/kg/day) which also produced significant increased liver weight. The genetic toxicology studies on thiabendazole indicate that it is not genotoxic in
Specific information on the studies received and the nature of the adverse effects caused by thiabendazole 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 thiabendazole used for human risk assessment is discussed in Unit III.B. of the final rule published in the
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Such effects were identified for thiabendazole. In estimating acute dietary exposure, EPA used 2003-2008 food consumption data from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, EPA used a refined acute probabilistic dietary exposure assessment for thiabendazole using both anticipated residue estimates based on USDA Pesticide Data Program (PDP) monitoring data and percent crop treated (PCT) information for soybean and wheat and assumed 100 PCT for all other commodities.
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Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:
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In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.
For the acute assessment, the Agency estimated the PCT for existing uses as follows:
Soybeans, 2.5%; wheat, 2.5%.
For the chronic assessment, the Agency estimated the PCT for existing uses as follows:
Soybeans, 1%; wheat, 1%.
In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6-7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.
The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which thiabendazole may be applied in a particular area.
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Based on the FQPA Index Reservoir Screening Tool (FIRST) and Pesticide Root Zone Model GroundWater (PRZM-GW), the estimated drinking water concentrations (EDWCs) of thiabendazole for acute exposures are estimated to be 3.80 parts per billion (ppb) for surface water and 0.62 ppb for ground water, and for chronic exposures are estimated to be 0.47 ppb for surface water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the acute dietary risk assessment, the water concentration value of 3.80 ppb was used to assess the contribution to drinking water.
For the chronic dietary risk assessment, the water concentration of value 0.47 ppb was used to assess the contribution to drinking water.
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Thiabendazole is currently registered for use as antimicrobial ingredient in paint, sponges, carpet backing, canvas textiles, wallboard and ceiling tiles, polyurethane foam, plastics and rubber, paper, and coatings and filters used in HVAC systems. There are two antimicrobial exposure scenarios that were assessed for residential exposures which are expected to result in the highest exposures from these antimicrobial uses: Treated paint and impregnated sponges. The other antimicrobial uses of thiabendazole (carpet backing, canvas textiles, wallboard and ceiling tiles, polyurethane foam, plastics and rubber, paper, and coatings and filters used in HVAC systems) are not expected to cause exposure in residential settings because there is no direct contact to the treated articles, the vapor pressure of thiabendazole is very low, and the unlikelihood that the treated plastics and rubbers would be used in toys.
EPA assessed residential exposure to treated paint and impregnated sponges using the following assumptions: For treated paint, residential short-term dermal and inhalation exposure to residential handlers using brush/roller application and airless sprayer application; for the impregnated sponge use, short- and intermediate-term incidental oral exposure. Thiabendazole treated sponges are limited to 600 ppm thiabendazole on a sponge. Various residue amounts may be transferred from the sponge to food contact surfaces, such as countertops and utensils/glassware, and then to food and subsequently ingested. An assessment was conducted for incidental oral exposure assuming that 100% of the thiabendazole on a treated sponge is transferred to surfaces over 20 days and that each 20 days the user would use a new sponge (5% released per day). This assumption is considered conservative because (1) sponges will generally be used much longer than 20 days; (2) it is unlikely that 100% of the thiabendazole would be released from the sponge in
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
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EPA has not found thiabendazole to share a common mechanism of toxicity with any other substances, and thiabendazole does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that thiabendazole 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
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i. The toxicology database for thiabendazole is complete with the exception of a developmental thyroid toxicity study. Based on a WOE approach considering all the available hazard and exposure information for thiabendazole, the Agency concluded that a developmental thyroid toxicity study is required since there is clear evidence of thyroid toxicity in adult animals and thus a concern for potential toxicity during pregnancy, infancy and childhood. The developmental thyroid toxicity study will better address this concern than a developmental neurotoxicity study. Acceptable studies are available for developmental, reproduction, chronic, subchronic, subchronic neurotoxicity and immunotoxicity.
ii. There is no indication that thiabendazole is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. The data submitted to the Agency, as well as those from published literature, demonstrate no increased susceptibility in rats, rabbits, or mice to
There is evidence of thyroid toxicity following subchronic and chronic exposures to rats characterized as histopathological changes in the thyroid in multiple studies in rats. Disruption of thyroid homeostasis is the initial, critical effect that may lead to adverse effects on the developing nervous system. Thus, as noted above, a developmental thyroid study is required.
iv. There are no residual uncertainties in the exposure database. The dietary risk assessment is conservative and will not underestimate dietary and/or non-dietary occupational exposure to thiabendazole. The acute and chronic dietary assessments conducted with the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID) were refined analyses. The assessments utilized anticipated residues, default processing factors, and available percent crop treated data. The DEEM analysis also used Tier 1 drinking water estimates. For these reasons it can be concluded that the DEEM-FCID analysis does not underestimate risk from acute or chronic exposure to thiabendazole. Similarly, EPA does not believe that the non-dietary occupational exposures are underestimated because they are also based on conservative assumptions, including maximum application rates, and standard values for unit exposures and acreage treated/amount handled. These assessments will not underestimate the exposure and risks posed by thiabendazole.
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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Thiabendazole is currently registered for uses that could result in short- and intermediate-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short- and intermediate-term residential exposures to thiabendazole.
Using the exposure assumptions described in this unit for short- and intermediate-term exposures, EPA has concluded the combined short- and intermediate-term food, water, and residential exposures result in aggregate MOEs from the paint use of 2,000 or greater for all population subgroups and aggregate MOEs from the sponge use of 1,400 for children 1-2 years old and 7,000 for the general population. Because EPA's level of concern for thiabendazole is a MOE of 300 or below, these MOEs are not of concern.
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Acceptable enforcement analytical methods are available for thiabendazole and benzimidazole in plant commodities. Four spectrophotofluorometric methods for the determination of thiabendazole are published in the Pesticide Analytical Manual (PAM) Vol. II, and a high performance liquid chromatography (HPLC) method with fluorescence detection (FLD) for the determination of benzimidazole (free and conjugated) is identified in the U.S. EPA Index of Residue Analytical Methods under thiabendazole as Study No. 93020.
Another adequate analytical method, GRM040.05A, is also available for data collection and tolerance enforcement of residues of thiabendazole and benzimidazole (free and conjugated) in/on plant commodities. Method GRM040.05A, developed by Syngenta Crop Protection, LLC, is a high performance liquid chromatography with tandem mass spectrometry detection (LC/MS/MS) method used for data collection in crop matrices. HED has designated Method GRM040.05A as a new tolerance enforcement method.
Both methods 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.
The Codex has not established a MRL for thiabendazole on any of the commodities cited in this document.
A comment was submitted by the Center for Food Safety and was primarily concerned about EPA's consideration of the impacts of thiabendazole on the environment, pollinators, and endangered species. This comment is not relevant to the Agency's evaluation of safety of the thiabendazole tolerances under section 408 of the FFDCA, which requires the Agency to evaluate the potential harms to human health, not effects on the environment.
The petitioned-for tolerances did not include measurement of benzimidazole (free and conjugated) which is a residue of concern for regulatory purposes. Therefore, the petitioned-for tolerance for the vegetable, legume, group 6 at 0.01 ppm for thiabendazole only, is adjusted to 0.02 ppm to account for the combined residues of thiabendazole and benzimidazole (free and conjugated). Also, EPA concluded that the maximum levels of the combined residues of concern in/on the representative crop commodities of vegetable, foliage of legume, group 7 are within 5x, and that a crop group 7 tolerance level of 0.20 ppm is more appropriate than the petitioned-for separate tolerances for pea, field, hay; pea, field, vines; and vegetable, foliage of legume, group 7, except pea, field, hay and vines.
In this rulemaking, EPA is adding an expiration date of March 21, 2017 to the existing tolerances for bean, dry, seed at 0.1 ppm and soybean at 0.1 ppm. These tolerances were based on foliar uses of thiabendazole which are no longer registered and Syngenta requested that these tolerances be removed as part of the petition and notice of filing (NOF). The seed treatment uses on dry bean seed and soybean is now covered by the tolerance being established on vegetable, legume, group 6 at 0.02 ppm. This new tolerance is lower than some existing MRLs on these commodities in Europe and other countries.
In accordance with the World Trade Organization's (WTO) Sanitary and Phytosanitary Measures Agreement, EPA notified the WTO of the request to revise these tolerances on September 9, 2015, as WTO notification G/SPS/N/USA/2779. In this action, EPA is allowing the existing higher tolerances to remain in effect for 6 months following the publication of this rule in order to allow a reasonable interval for producers in exporting countries to adapt to the requirements of these modified tolerances. On March 21, 2017, those existing higher tolerances will expire, and the new reduced tolerances for vegetable, legume, group 6 at 0.02 ppm will remain to cover residues of thiabendazole on those commodities. Before that date, residues of thiabendazole on those commodities would be permitted up to the higher tolerance levels; after that date, residues of thiabendazole on vegetable, legume, group 6 will need to comply with the
Therefore, tolerances are established for residues of thiabendazole in or on vegetable, foliage of legume, group 7 at 0.20 ppm and vegetable, legume, group 6 at 0.02 ppm. The Agency is also adding an expiration date of March 21, 2017 to the existing tolerances for bean, dry, seed at 0.1 ppm and soybean at 0.1 ppm. Residues of thiabendazole will be covered by these higher tolerances until the expiration date, after which time, they will need to comply with the lower tolerance being established today on the vegetable, legume, group 6 at 0.02 ppm. The tolerance for group 6 without a time limitation supersedes the existing section 18 time-limited tolerance for “pea, succulent shelled”; therefore, the Agency is removing that section 18 tolerance.
The Agency is also removing the threshold of regulation determination for thiabendazole from 180.2010 because it is no longer necessary. Lastly, this regulation additionally establishes a time-limited tolerances for residues of thiabendazole in or on sweet potato at 10 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 tolerance 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.
The additions and revisions read as follows:
(a) * * *
(1) * * *
(b) * * *
Office of Government-wide Policy (OGP), General Services Administration (GSA).
Final rule.
GSA is amending the Federal Management Regulation (FMR), Transportation Payment and Audit, to clarify agency and Department of Defense (DoD) transportation payment and audit requirements. GSA is also amending relevant definitions. The FMR is written in plain language to provide agencies with updated regulatory material that is easy to read and understand.
For clarification of content, contact Mr. Ron Siegel, Office of Government-wide Policy, at 202-357-9540 or by email at
Agencies are authorized to procure transportation services either through the Federal Acquisition Regulation (FAR) by utilizing a contract, or via 49 U.S.C. 10721 (for rail transportation), 49 U.S.C. 13712 (for surface transportation), and/or 49 U.S.C. 15504 (for pipeline transportation) by utilizing rate tenders. It is critical that agencies ensure that transportation services received are properly charged and that the payment made is correct.
Toward that end, the Travel and Transportation Reform Act of 1998 (Pub. L. 105-264) established agency statutory requirements for prepayment audits of Federal agency and DoD transportation expenses. The Act also established GSA's statutory authority for audit oversight to protect the interests of the Government.
This final rule clarifies and strengthens agency and DoD compliance with regulations for transportation prepayment audits and postpayment audits. In addition, this final rule updates definitions in 41 CFR part 102-117, Transportation Management, as a result of the amendments to 41 CFR 102-118.
This final rule is the outcome of the first of a two phase review of FMR part 102-118, Transportation Payment and Audit, conducted by GSA and the Governmentwide Transportation Policy Council (GTPC). The GTPC is composed of representatives from civilian agencies and DoD and provides GSA with guidance in the planning and development of uniform transportation policies and procedures.
The first phase review focused on FMR part 102-118 Subparts A (General), D (Prepayment Audits of Transportation Services), and E (Postpayment Transportation Audits). The second phase review will focus on FMR part 102-118 Subpart A (General), as well as Subparts B (Ordering and Paying for Transportation and Transportation Services), C (Use of Government Billing Documents), and F (Claims and Appeals Procedures).
In the proposed rule published at 80 FR 59094 in the
This final rule:
• Revises the definitions for “Agency”, “Bill of lading” (BOL), “Government bill of lading” (GBL), “Transportation document” (TD), and “Transportation Service Provider” (TSP), removes the definition “Release/declared value”, and adds the definitions “Declared value” and “Released value” in FMR part 102-117; and revises the definitions “Agency”, “Bill of lading” (BOL), “Document reference number”, “Government bill of lading” (GBL), “Government transportation request”, Offset”, “Overcharge”, “Postpayment audit”, “Rate authority”, “Reparation”, “Standard Carrier Alpha Code” (SCAC), “Statement of difference”, “Supplemental bill”, “Transportation document (TD)”, and “Transportation Service provider” (TSP), removes the terms “Agency claim”, “Released value”, “Transportation service”, “Transportation service provider claim”, and “Virtual GBL (VGBL)”, and adds the terms “Claim” and
• Strengthens agency requirements and responsibilities for transportation prepayment audits and transportation postpayment audit, submission requirements to the GSA Transportation Audits Division, and the required information on all transportation documentation.
• Updates and clarifies GSA Transportation Audits Division roles and responsibilities.
Executive Orders (E.O.) 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, will not be 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.
These revisions are not substantive, and therefore, this rule would not 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,
The 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).
This rule is also exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates to agency management or personnel.
Accounting, Claims, Freight, Government property management, Moving of household goods, Reporting and recordkeeping requirements, Transportation.
For the reasons set forth in the preamble, GSA amends 41 CFR parts 102-117 and 102-118 as follows:
31 U.S.C. 3726; 40 U.S.C. 121(c); 40 U.S.C. 501,
The revisions and additions read as follows:
31 U.S.C. 3726; 40 U.S.C. 121(c); 40 U.S.C. 501,
A transportation audit is a thorough review and validation of transportation related documents and bills. The audit
This part applies to all agencies (including the Department of Defense (DoD)) and TSPs defined in § 102-118.35, and wholly-owned Government corporations as defined in 31 U.S.C. 101,
As part of the evaluation of agencies' transportation program and postpayment audit, GSA may request to examine your agency's transportation prepayment audit program and policies to verify the performance of the prepayment audit. GSA Office of Government-wide Policy, Transportation Policy Division and GSA Transportation Audits Division may suggest revisions of agencies' audit program or policies.
This part does not apply to Government-controlled corporations and mixed-ownership Government corporations as defined in 31 U.S.C. 9101(1) and (2).
(1) Any demand by an agency upon a transportation service provider (TSP) for the payment of overcharges, ordinary debts, fines, penalties, administrative fees, special charges, and interest; or
(2) Any demand by the TSP for amounts not included in the original bill that the TSP believes an agency owes them. This includes amounts deducted or offset by an agency; amounts previously refunded by the TSP, which is believed to be owed; and any subsequent bills from the TSP resulting from a transaction that was prepayment or postpayment audited by the GSA Transportation Audits Division.
15 U.S.C. 96,
31 U.S.C. 3726; 40 U.S.C. 121(c); 40 U.S.C. 501,
Prepayment audit means a review of transportation documentation before payment to determine their validity, propriety, and conformity of rates with tariffs, quotations, agreements, contracts, or tenders. Prepayment auditing by your agency will detect and eliminate billing errors before payment (31 U.S.C. 3726).
(a) Yes, under 31 U.S.C. 3726, your agency is required to establish a transportation prepayment audit program. Your agency's Chief Financial Officer (CFO) must approve the prepayment audit program.
(b) Your agency must pay for the prepayment audit program from those funds appropriated for transportation services.
(1) Agencies are encouraged to consider using a GSA Transportation Audits Division approved third party electronic payment processor for transportation invoice processing, payment, and prepayment audit. These electronic payment processors are no cost to the agency and are fully compliant with GSA Transportation Audits Division prepayment audit requirements.
(2) Use of these third party payment processors generally means your agency will not have to provide any additional prepayment or postpayment documentation to GSA Transportation Audits Division.
(a) Your agency's transportation prepayment audit program must consider all of the methods that your agency uses to order and pay for passenger, household goods, and freight transportation to include Government contractor-issued charge cards (see § 102-118.35 for definition Government contractor-issued charge cards).
(b) Each method of ordering transportation and transportation services for passenger, household goods, and freight transportation may require a different kind of prepayment audit process. The manner in which your agency orders or procures transportation services determines how and by whom
(c) The prepayment audit cannot be conducted by the same firm providing the transportation services for the agency. If a move manager is being utilized, the move manager may not have any affiliation with or financial interest in the transportation company providing the transportation services for which the prepayment audit is being conducted. Contracts with charge card companies that provide prepayment audit services are a valid option. The agency can choose to—
(1) Create an internal prepayment audit program;
(2) Contract directly with a prepayment audit service provider;
(3) Use the services of a prepayment audit contractor under GSA's multiple award schedule covering audit and financial management services (
(4) Use a Third-Party Payment System or charge card company that includes prepayment audit functions, such as the GSA Center for Transportation Management's PayPort Express.
(d) An appeals process must be established for a TSP to appeal any reduction in the amount billed. It is recommended the agency establish an electronic appeal process that will direct TSP-filed appeals to an agency official for determination of the claim.
(e) A process to ensure that all agency transportation procurement and related documents including contracts and tenders are submitted electronically to GSA Transportation Audits Division.
(f) Use of GSA Transportation Audits Division's Prepayment Audit Program template is recommended (contact
Yes, all transportation bills and payment records, whether they are electronic or paper, must undergo a prepayment audit with the following exceptions:
(a) Your agency's prepayment audit program uses a statistical sampling technique of the bills. If your agency chooses to use statistical sampling, all bills must be
(1) At or below the Comptroller General specified limit of $2,500.00 (31 U.S.C. 3521(b)); and
(2) In compliance with the U.S. Government Accountability Office Using Statistical Sampling (GAO/PEMD-10.1.6), Rev. 1992, Chapter 7 Random Selection Procedures obtainable from
(b) The Administrator of General Services grants your agency a specific exemption from the prepayment audit requirement which may include bills determined to be below your agency's threshold, mode or modes of transportation, or for an agency or subagency.
The agency prepayment audit program must include—
(a) The agency's CFO approval of the transportation prepayment audit program with submission to GSA Transportation Audits Division;
(b) Compliance with the Prompt Payment Act (31 U.S.C. 3901,
(c) Assurance that each TSP bill or employee travel voucher contains appropriate information for the prepayment audit to determine which contract or rate tender is used and that the type and quantity of any additional services are clearly delineated;
(d) Verification of all transportation bills against filed rates and charges before payment;
(e) A process to forward all transportation documentation (TD) monthly to the GSA Transportation Audits Division.
(1) GSA Transportation Audits Division can provide your agency a Prepayment Audit Program with a monthly reporting template upon request at
(2) In addition to the requirements for agencies to maintain transportation records, GSA will store paid transportation bills in accordance with the General Records Schedule 9, Travel and Transportation (36 CFR 1228.22). GSA will arrange for storage of any document requiring special handling, such as bankruptcy and court cases. These bills will be retained pursuant to 44 U.S.C. 3309 until claims have been settled;
(f) Establish procedures in which transportation bills not subject to prepayment audit, such as bills for unused tickets and charge card billings, are handled separately and are also forwarded monthly to the GSA Transportation Audits Division;
(g) A minimum dollar threshold for transportation bills subject to audit;
(h) A statement in a cost reimbursable contracts contract or rate tender that the contractor shall submit to the address and in the electronic format identified for prepayment audit, transportation documents which show that the United States will assume freight charges that were paid by the contractor. Cost reimbursable contractors shall only submit for audit bills of lading with freight shipment charges exceeding $100.00. Bills under $100.00 shall be retained on-site by the contractor and made available for on-site Government audits (Federal Acquisition Regulation (FAR) 52.247-67);
(i) Require your agency's paying office to offset, if directed by GSA's Transportation Audits Division, debts from amounts owed to the TSP within the 3 years (31 U.S.C. 3726(b));
(j) A process to ensure complete and accurate audits of all transportation bills and notification to the TSP of any adjustment within 7 calendar days of receipt of the bill;
(k) An appeals process as part of the approved prepayment audit program for a TSP to appeal any reduction in the amount billed. Refer to § 102-118.295 for details regarding the appeals process.
(l) Accurate notices and agency procedures for notifying the TSPs with a detailed description of the reasons for any full or partial rejection of the stated charges on the invoice. Refer to § 102-118.290 for notice requirements; and
(m) A unique agency numbering system to handle commercial paper and practices (see § 102-118.55 for information on administrative procedures your agency must establish).
(a) Yes, your agency must notify the TSP of any adjustment to the TSP bill either electronically or in writing within seven calendar days of the agency receipt of the bill.
(b) This notice must include:
(1) TSP's bill number;
(2) Agency name;
(3) TSP's TIN;
(4) SCAC;
(5) DRN;
(6) Date invoice submitted;
(7) Amount billed;
(8) Date invoice was approved for payment;
(9) Date and amount agency paid;
(10) Payment location number and agency organization name;
(11) Payment voucher number;
(12) Complete contract, tender or tariff authority, including item or section number;
(13) Reason for the adjustment; and
(14) Complete information on the agency appeal process.
(c) A TSP must submit claims to the agency within three years under the guidelines established in subpart F, Claims and Appeals Procedures, of this part.
Yes, your agency must establish, in the approved prepayment audit program, an appeals process for a TSP to appeal any reduction in the amount billed. It is recommended the agency establish an electronic appeal process that will direct TSP-filed appeals to an agency official for determination of the claim. Your agency must complete the review of the appeal and inform the TSP of the agency determination within 30 calendar days of the receipt of the appeal, either electronically or in writing.
(a) If your agency is unable to resolve the disputed amount with the TSP, your agency must submit, within 30 calendar days, all relevant transportation documentation associated with the dispute, including a complete billing history and the appropriation or fund charged, to GSA Transportation Audits Division by email at
(b) The GSA Transportation Audits Division will review the appeal of an agency's final, full, or partial denial of a claim and issue a decision within 30 calendar days of receipt of appeal.
(c) A TSP must submit claims to the agency within three years under the guidelines established in subpart F of this part.
(a) The following information must be annotated on all transportation payment records, electronically or on paper, that have completed your agency's prepayment audit and for submission to GSA Transportation Audits Division:
(1) The date the bill was received from a TSP;
(2) A TSP's invoice number;
(3) Your agency name;
(4) DRN;
(5) Amount billed;
(6) Date invoice was approved for payment;
(7) Date and amount agency paid;
(8) Payment location code number and office or organization name;
(9) Payment voucher number;
(10) Complete contract, tender or tariff authority, including item or section number;
(11) The TSP's TIN;
(12) The TSP's SCAC;
(13) The auditor's authorization code or initials; and
(14) A copy of any statement of difference and the date it was sent to the TSP.
(b) Your agency can find added guidance in the “U.S. Government Freight Transportation Handbook.” This handbook is located at
GSA Transportation Audit Division bases verification of agency prepayment audit programs on objective cost-savings, paperwork reductions, current audit standards, and other positive improvements, as well as adherence to the guidelines listed in this part.
Your agency may contact the GSA Transportation Audits Division at
(a) If your agency's transportation prepayment audit program changes in any way to include changes in prepayment auditors, your agency must submit the CFO-approved revised transportation prepayment audit program to GSA Transportation Audits Division via email at
(b) If GSA determines the agency's approved plan is insufficient, GSA will contact the agency CFO to inform of the prepayment audit program deficiencies and request corrective action and resubmission to GSA Transportation Audits Division.
No, in a prepayment audit program, the official certifying a transportation voucher is held liable for verifying transportation rates, freight classifications, and other information provided on a transportation billing instrument or transportation request undergoing a prepayment audit (31 U.S.C. 3528).
Yes, a certifying official is not personally liable for verifying transportation rates, freight classifications, or other information provided on a bill of lading or passenger transportation request when the Administrator of General Services or designee waives the prepayment audit requirement and your agency uses postpayment audits.
The agency counsel relieves a certifying official from liability for transportation overpayments in cases where—
(a) Postpayment is the approved method of auditing;
(b) The overpayment occurred solely because the administrative review before payment did not verify transportation rates; and
(c) The overpayment was the result of using improper transportation rates or freight classifications or the failure to deduct the correct amount under a land grant law or agreement.
No, the disbursing official has a liability for overpayments on all transportation bills subject to prepayment audit (31 U.S.C. 3322).
Your agency's counsel has the authority to relieve liability and give advance opinions on liability issues to certifying, accountable, and disbursing officers (31 U.S.C. 3527).
Only the Administrator of General Services or their designee has the authority to grant an exemption for a specific time period from the prepayment audit requirement. The Administrator may exempt bills, a particular mode or modes of transportation, or an agency or subagency from a prepayment audit and verification and in lieu thereof require a postpayment audit, based on cost effectiveness, public interest, or other factors the Administrator considers appropriate (31 U.S.C. 3726(a)(2)).
Your agency must submit a request for an exemption from the requirement to perform transportation prepayment audits by email to
GSA will respond to the exemption from the transportation prepayment audit requirement request within 180 calendar days from the date of receipt.
It may be possible for your agency to be granted a prepayment audit exemption extension. Your agency must submit a request for the extension to GSA Transportation Audits Division at least six months in advance of the current exemption expiration.
Yes. All your agency's prepayment audited transportation documents are subject to the GSA Transportation Audits Division postpayment audit oversight. Upon request, GSA Transportation Audits Division will provide a report analyzing your agency's prepayment audit program.
(a) Yes. The Director of the GSA Transportation Audits Division may suspend your agency's transportation prepayment audit program until the agency corrects their prepayment audit program deficiencies. This suspension may be in whole or in part. If GSA suspends your agency's transportation prepayment audit and GSA assumes responsibility for auditing an agencies prepayment audit program, the agency will reimburse GSA for the expense.
(b) This suspension determination is based on identification of a systematic or frequent failure of the agency's transportation prepayment audit program to—
(1) Conduct a prepayment audit of your agency's transportation bills; and/or
(2) Abide by the terms of the Prompt Payment Act (31 U.S.C. 3901,
(3) Adjudicate TSP claims disputing prepayment audit positions of the agency regularly within 30 calendar days of receipt;
(4) Follow Comptroller General decisions, Civilian Board of Contract Appeals decisions, the Federal Management Regulation and GSA instructions or precedents about substantive and procedure matters; and/or
(5) Provide information and data or to cooperate with on-site inspections necessary to conduct a quality assurance review.
The Administrator of General Services (GSA) has a congressionally mandated responsibility under 31 U.S.C. 3726 to perform oversight on transportation bills. The GSA Transportation Audits Division accomplishes this oversight by conducting postpayment audits of all agencies' transportation bills.
No, agency compliance to the mandatory transportation prepayment audit does not eliminate the requirement of the transportation postpayment audit conducted by GSA (31 U.S.C. 3726).
Yes. The Administrator of General Services or designee may exempt, for a specified time, an agency or subagency from the GSA transportation postpayment audit oversight requirements of this subpart. The Administrator can also exempt modes (31 U.S.C. 3726).
No. Your agency may not perform a transportation postpayment audit unless granted an exemption and specifically
(a) Yes, your agency must provide all TDs to GSA Transportation Audits Division (see § 102-118.35 for definition TD).
(b) The following information must be annotated on all TDs and bills that have completed your agency's prepayment audit for submission to GSA Transportation Audits Division:
(1) The date the bill was received from a TSP;
(2) A TSP's invoice number;
(3) Your agency name;
(4) A DRN;
(5) Amount billed;
(6) Date invoice was approved for payment;
(7) Payment date and amount agency paid;
(8) Payment location code number and office name;
(9) Payment voucher number;
(10) Complete contract, tender, or tariff authority, including item or section number;
(11) The TSP's TIN;
(12) The TSP's SCAC;
(13) The auditor's full name, email address, contact telephone number, and authorization code; and
(14) A copy of any statement of difference sent to the TSP.
(c) Your agency can find additional guidance in the “U.S. Government Freight Transportation Handbook.” This handbook is located at
The GSA Transportation Audits Division
(a) Audits select TSP bills after payment;
(b) Audits select TSP bills before payment as needed to protect the Government's interest;
(c) Examines, settles, and adjusts accounts involving payment for transportation and related services for the account of agencies;
(d) Adjudicates and settles transportation claims by and against agencies;
(e) Offsets an overcharge by any TSP from an amount subsequently found to be due that TSP;
(f) Issues a Notice of Overcharge stating that a TSP owes a debt to the agency. This notice states the amount paid and the basis for the proper charge for the document reference number (DRN), and cites applicable contract, tariff, or tender, along with other data relied on to support the overcharge; and
(g) Issues a GSA Notice of Indebtedness when a TSP owes an ordinary debt to an agency. This notice states the basis for the debt, the TSP's rights, interest, penalty, and other results of nonpayment. The debt is due immediately and is subject to interest charges, penalties, and administrative cost under 31 U.S.C. 3717.
(a) The GSA Transportation Audits Division role is to perform the oversight responsibility of transportation prepayment and postpayment granted to the Administrator. The GSA Transportation Audits Division will—
(1) Examine and analyze transportation documents and payments to discover their validity, relevance and conformity with tariffs, quotations, contracts, agreements, or tenders and make adjustments to protect the interest of an agency;
(2) Examine, adjudicate, and settle transportation claims by and against the agency;
(3) Collect from TSPs by refund, setoff, offset, or other means, the amounts determined to be due the agency;
(4) Adjust, terminate, or suspend debts due on TSP overcharges;
(5) Prepare reports to the Attorney General of the United States with recommendations about the legal and technical bases available for use in prosecuting or defending suits by or against an agency and provide technical, fiscal, and factual data from relevant records;
(6) Provide transportation specialists and lawyers to serve as expert witnesses; assist in pretrial conferences; draft pleadings, orders, and briefs; and participate as requested in connection with transportation suits by or against an agency;
(7) Review agency policies, programs, and procedures to determine their adequacy and effectiveness in the audit of freight or passenger transportation payments, and review related fiscal and transportation practices;
(8) Furnish information on rates, fares, routes, and related technical data upon request;
(9) Inform an agency of irregular shipping routing practices, inadequate commodity descriptions, excessive transportation cost authorizations, and unsound principles employed in traffic and transportation management; and
(10) Confer with individual TSPs or related groups and associations presenting specific modes of transportation to resolve mutual problems concerning technical and accounting matters, and providing information on requirements.
(b) The Administrator of General Services may provide transportation audit and related technical assistance services, on a reimbursable basis, to any other agency. Such reimbursements may be credited to the appropriate revolving fund or appropriation from which the expenses were incurred (31 U.S.C. 3726(j)).
The GSA Transportation Audits Division does not charge agencies a fee for conducting the transportation postpayment audit. Transportation postpayment audits expenses are financed from overpayments collected from the TSP's bills previously paid by the agency and similar type of refunds. However, if a postpayment audit is conducted in lieu of a prepayment audit at the request of an agency, or if there are additional services required, GSA may charge the agency.
You may contact the GSA Transportation Audits Division by email at
Federal Communications Commission.
Final rule.
At the request of the Cheyenne River Sioux Tribe, the Audio Division amends the FM Table of Allotments, by allotting Channel 228C1 at Eagle Butte, South Dakota, as the first local Tribal-owned service. A staff engineering analysis indicates that
Effective October 17, 2016.
Adrienne Y. Denysyk, Media Bureau, (202) 418-2700.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
Federal Communications Commission.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:
47 U.S.C. 154, 303, 334, 336, and 339.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; approval of quota transfer.
NMFS announces its approval of a transfer of a portion of the 2016 commercial bluefish quota from the State of New Jersey to the State of New York. This approval of the transfer complies with the Atlantic Bluefish Fishery Management Plan quota transfer provision. This announcement also informs the public of the revised commercial quotas for New Jersey and New York.
Effective September 21, 2016, through December 31, 2016.
Reid Lichwell, Fishery Management Specialist, (978) 281-9112.
Regulations governing the Atlantic bluefish fishery are found in 50 CFR 648.160 through 648.167. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through Florida. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.162.
The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan published in the
Both states have requested the transfer of 40,000 lb (18,144 kg) of bluefish commercial quota from New Jersey to New York. Both states have certified that the transfer meets all pertinent state requirements. This quota transfer was requested by the New York to ensure that its 2016 quota would not be exceeded. The Regional Administrator has approved this quota transfer based on his determination that the criteria set forth in § 648.162(e)(1)(i) through (iii) have been met. The revised bluefish quotas for calendar year 2016 are: New Jersey, 683,739 lb (310,139 kg); and New York, 727,289 lb (329,893 kg). These quota adjustments revise the quotas specified in the final rule implementing the 2016-2018 Atlantic Bluefish Specifications published on August 4, 2016 (81 FR 51370), and reflect all subsequent commercial bluefish quota transfers completed to date. For information of previous transfers for fishing year 2016, visit:
This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting retention of shortraker rockfish in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary because the 2016 total allowable catch of shortraker rockfish in the Central Regulatory Area of the GOA has been reached. This closure does not apply to vessels participating in the catcher/processor cooperative fishery in the Rockfish Program.
Effective 1200 hours, Alaska local time (A.l.t.), September 19, 2016, through 2400 hours, A.l.t., December 31, 2016.
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2016 total allowable catch (TAC) of shortraker rockfish in the Central Regulatory Area of the GOA by vessels not participating in the catcher/processor cooperative fishery in the Rockfish Program is 181 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016).
In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2016 TAC of shortraker rockfish in the Central Regulatory Area of the GOA by vessels not participating in the catcher/processor cooperative fishery in the Rockfish Program has been reached. Therefore, NMFS is requiring that shortraker rockfish in the Central Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b). This closure does not apply to vessels participating in the catcher/processor cooperative fishery in the Rockfish Program.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay prohibiting the retention of shortraker rockfish in the Central Regulatory Area of the GOA for vessels not participating in the catcher/processor cooperative fishery in the Rockfish Program. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 16, 2016.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by §§ 679.20 and 679.21 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Animal and Plant Health Inspection Service, USDA.
Proposed rule; extension of comment period and clarification.
We are extending the comment period for our proposed rule to amend the horse protection regulations to provide that the Animal and Plant Health Inspection Service will train and license inspectors to inspect horses at horse shows, exhibitions, sales, and auctions for compliance with the Horse Protection Act. This action will allow interested persons additional time to prepare and submit comments. We are also making a clarification to the proposed regulations pertaining to specific prohibitions concerning exhibitors.
The comment period for the proposed rule published on July 26, 2016 (81 FR 49112) is extended. We will consider all comments that we receive on or before October 26, 2016.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Dr. Kay Carter-Corker, Director, National Policy Staff, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale, MD 20737; (301) 851-3751.
On July 26, 2016, we published in the
Comments on the proposed rule were required to be received on or before September 26, 2016. We are extending the comment period on Docket No. APHIS-2011-0009 for an additional 30 days. This action will allow interested persons more time to prepare and submit comments.
As part of our proposed rule, we proposed to retitle § 11.2 as “Prohibited actions, practices, devices, and substances” and to prohibit all action devices, pads, and substances applied to a horse's limbs. Also prohibited is any practice involving a horse, and, as a result of such practice, such horse suffers, or can reasonably be expected to suffer, physical pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving. These proposed changes were intended to successfully and significantly reduce the number of sored horses shown, exhibited, sold, and auctioned. In our proposed changes to § 11.2, we included provisions in proposed paragraph (a)(3) of that section stating that the use of any weight on horses up to 2 years old, except a keg or similar conventional horseshoe is prohibited, as is the use of a horseshoe on horses up to 2 years old that weighs more than 16 ounces. In keeping with the intent of our other proposed changes, we are considering changing proposed paragraph (a)(3) to read “The use of any weight on horses, except a keg or similar conventional horseshoe, is prohibited.” We will consider all comments we received on this provision throughout the comment period so that those who have already commented know we will continue to consider their views.
15 U.S.C. 1823-1825 and 1828; 7 CFR 2.22, 2.80, and 371.7.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 757 airplanes. This proposed AD was prompted by reports of single and multiple uncommanded spoiler panel extensions during flight when there was a hydraulic system failure. This proposed AD would require replacing certain spoiler power control units (PCUs) with new or changed PCUs. We are proposing this AD to prevent an
We must receive comments on this proposed AD by November 7, 2016.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Myra Kuck, Aerospace Engineer, Cabin Safety/Mechanical & Environmental Systems branch, ANM-150L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, California 90712-4137; phone: 562-627-5316; fax: 562-627-5210; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have received reports of single and multiple uncommanded spoiler panel extensions during flight. The condition known as “spoiler panel float” occurred when there was a hydraulic system pressure loss and the flaps were extended beyond 20 degrees. A subsequent investigation determined that the spoiler PCUs' blocking and thermal relief valve (BTRV) housings had reached a point of fatigue that made them likely to develop internal failures. One purpose of the spoiler PCU BTRV is to prevent the spoiler panel from extending during a loss of hydraulic pressure. An uncommanded extension of spoiler panels, in the event of a hydraulic system failure, could result in the loss of control of the airplane.
We reviewed Boeing Alert Service Bulletin 757-27A0154, dated July 22, 2016. The service information describes procedures for replacing certain spoiler PCUs with new or changed PCUs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously, For information on the procedures and compliance times, see this service information at
We estimate that this proposed AD affects 573 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by November 7, 2016.
None.
This AD applies to The Boeing Company Model 757-200, -200PF, -200CB, and -300 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 757-27A0154, dated July 22, 2016.
Air Transport Association (ATA) of America Code 27; Flight controls.
This AD was prompted by reports of single and multiple uncommanded spoiler panel extensions during flight when there was a hydraulic system failure. We are issuing this AD to prevent an uncommanded extension of spoiler panels in the event of a hydraulic system failure, which could result in loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 51 months after the effective date of this AD: Replace each spoiler power control unit (PCU) with a new or changed PCU at spoiler positions 2, 3, and 4 on the left wing, and spoiler positions 9, 10, and 11 on the right wing, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 757-27A0154, dated July 22, 2016.
(1) The Manager, Los Angeles Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (i)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (h)(4)(i) and (h)(4)(ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
(1) For more information about this AD, contact Myra Kuck, Aerospace Engineer, Cabin Safety/Mechanical & Environmental Systems branch, ANM-150L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, California 90712-4137; phone: 562-627-5316; fax: 562-627-5210; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
Office of the United States Trade Representative.
Proposed rule with request for comments.
The Office of the United States Trade Representative (USTR) is renaming and reorganizing part 2004 to include all of the rules governing disclosure of records and information by USTR. Part 2004 will include four subparts—subpart A will contain definitions used throughout part 2004, subpart B will implement the Freedom of Information Act, subpart C will implement the Privacy Act of 1974, and subpart D will govern how USTR responds to official demands and informal requests for records, information or employee testimony in connection with legal proceedings in which neither the United States nor USTR is a party. This proposed rule
We must receive your written comments on or before November 21, 2016.
You should submit written comments through the Federal eRulemaking Portal:
Janice Kaye, Monique Ricker or Melissa Keppel, Office of General Counsel, United States Trade Representative, Anacostia Naval Annex, Building 410/Door 123, 250 Murray Lane SW., Washington, DC 20509,
Federal agencies often receive formal demands (including subpoenas) or informal requests to produce records, information or testimony in judicial, legislative or administrative proceedings in which those agencies or the United States is not a named party. Many federal agencies have issued regulations to address the submission, evaluation and processing of these demands or requests. They have done so because responding to these demands or requests can be burdensome, may disrupt an agency employee's work schedule, may involve the agency in issues unrelated to its responsibilities, may divert agency resources from accomplishing mission critical functions, and may impede the agency's accomplishment of its mission and goals. Standard rules alleviate these difficulties by ensuring timely notice and centralized, objective decision making. The United States Supreme Court upheld this type of regulation in
The proposed rule will establish a USTR Touhy rule that governs the process we use to authorize or deny such demands. It prohibits USTR employees from producing records, information or testimony in response to demands or requests, unless the demands or requests comply with the rule,
We are renaming and reorganizing 15 CFR part 2004, which will include all of the rules governing disclosure of records and information by USTR. Part 2004 will include four subparts—subpart A will contain definitions used throughout part 2004, subpart B will implement the Freedom of Information Act, 5 U.S.C. 552, subpart C will implement the Privacy Act of 1974, 5 U.S.C. 552a, and subpart D will establish the USTR Touhy rule.
USTR has considered the impact of the proposed rule and determined that if adopted as a final rule it is not likely to have a significant economic impact on a substantial number of small business entities because it is applicable only to USTR's internal operations and legal obligations.
The proposed rule does not contain any information collection requirement that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
Administrative practice and procedure, Courts, Disclosure,
19 U.S.C. 2171(e)(3).
For purposes of this part:
5 U.S.C. 301; 19 U.S.C. 2171(e)(3).
(a)
(b)
(c)
(2) The production of records, information or testimony pursuant to this subpart does not constitute a waiver by USTR of any privilege.
(d) This subpart provides guidance for USTR's internal operations and does not create any right or benefit, substantive or procedural, that a party may rely upon in any legal proceeding against USTR or the United States.
For purposes of this subpart:
(a)
(b)
The General Counsel may grant an employee permission to testify regarding USTR matters and to produce records and information in response to a demand or request. Among the relevant factors the General Counsel may consider in making this determination are whether:
(a) The requested records, information or testimony are reasonable in scope, relevant and material to the pending action, and unavailable from other sources such as a non-USTR employee, or a USTR employee other than the employee named.
(b) Production of the records, information or testimony might result in USTR appearing to favor one litigant over another.
(c) USTR has an interest in the decision that may be rendered in the legal proceeding.
(d) Approving the demand or request would assist or hinder USTR in
(e) The demand or request is unduly burdensome or otherwise inappropriate under the rules of discovery or procedure governing the case or matter in which the demand or request arose.
(f) Production of the records, information or testimony might violate or be inconsistent with a statute, Executive Order, regulation or other legal authority.
(g) Disclosure, including release in camera, is appropriate or necessary under the relevant substantive law concerning privilege.
(h) Disclosure, except when in camera and necessary to assert a claim of privilege, would reveal information properly classified or other matters exempt from unrestricted disclosure.
(i) Disclosure would interfere with ongoing enforcement proceedings, compromise constitutional rights, reveal the identity of an intelligence source or confidential informant, or disclose trade secrets or similarly confidential commercial or financial information.
(j) Any other appropriate factor.
(a)
(b)
(c)
A demand or request for testimony also must include an estimate of the amount of time that the employee will need to devote to the process of testifying (including anticipated travel time and anticipated duration of round trip travel), plus a showing that no document or the testimony of non-USTR persons, including retained experts, could suffice in lieu of the employee's testimony.
(d)
(e)
(a) The General Counsel will review a request or demand to produce or disclose records, information or testimony and determine whether, or under what conditions, to authorize the employee to testify regarding USTR matters or produce records and information. The General Counsel will notify the requester of the final determination, the reasons for the grant or denial of the demand or request, and any conditions on disclosure.
(b) When necessary, the General Counsel will coordinate with the U.S. Department of Justice to file appropriate motions, including motions to remove the matter to Federal court, to quash, or to obtain a protective order.
(c) The General Counsel will process demands and requests in the order in which they are received. Absent unusual circumstances and depending on the scope of the demand or request, the General Counsel will respond within 45 calendar days of the date USTR receives all information necessary to evaluate the demand or request.
(a) The General Counsel may impose conditions or restrictions on the testimony of USTR employees including, for example, limiting the scope of testimony or requiring the requester and other parties to the legal proceeding to agree that the testimony transcript will be kept under seal or will only be used or made available in the particular legal proceeding for which testimony was requested. The General Counsel also may require a copy of the testimony transcript at the requester's expense.
(b) USTR may offer the employee's written declaration in lieu of testimony.
(c) If authorized to testify pursuant to this subpart, an employee may testify as to relevant facts within his or her personal knowledge, but, unless specifically authorized to do so by the General Counsel, the employee must not:
(1) Disclose classified, confidential or privileged information; or
(2) For a current USTR employee, testify as an expert or opinion witness with regard to any matter arising out of the employee's official duties or USTR's mission or functions, unless testimony is provided on behalf of the United States. A former employee can provide expert or opinion testimony where the testimony involves only general expertise gained while employed as a USTR employee.
(a) The General Counsel may impose conditions or restrictions on the release of records and information, including requiring the parties to the legal proceeding to obtain a protective order or to execute a confidentiality agreement to limit access and further disclosure. The terms of a protective order or confidentiality agreement must be acceptable to the General Counsel. In cases where protective orders or confidentiality agreements already have been executed, USTR may condition the release of records and information on an amendment to the existing protective order or confidentiality agreement.
(b) If the General Counsel so determines, USTR may present original records for examination in response to a demand or request, but the records cannot be marked or altered or presented as evidence or otherwise used in a manner by which they could lose their status as original records. In lieu of original records, certified copies will be presented for evidentiary purposes. (
(a) Notwithstanding USTR's rejection of a demand or request for records, information or testimony, if a court or other competent authority orders a USTR employee to comply with the demand, the employee promptly must notify the General Counsel of the order, and must respectfully decline to comply, citing
(b) To seek reconsideration of USTR's rejection of a demand or request, or of any restrictions on receiving records, information or testimony, a requester must send a petition for reconsideration
(c) Pursuant to section 704 of the Administrative Procedure Act, 5 U.S.C. 704, a petition for reconsideration of a final determination under this section is a prerequisite to judicial review.
(a) USTR may condition the production of records, information or an employee's appearance on advance payment of reasonable costs, which may include but are not limited to those associated with employee search time, copying, computer usage, and certifications.
(b) Witness fees will include fees, expenses and allowances prescribed by the rules applicable to the particular legal proceeding. If no fees are prescribed, USTR will base fees on the rule of the federal district court closest to the location where the witness will appear. Such fees may include but are not limited to time for preparation, travel and attendance at the legal proceeding.
Department of Veterans Affairs.
Withdrawal of proposed rule.
The Department of Veterans Affairs (VA) is withdrawing VA's proposed rulemaking, published on July 11, 2016, to amend its regulation giving the Under Secretary of Memorial Affairs (USMA), or his designee, authority to solicit gifts and donations. VA received two supportive comments and no adverse comments concerning the proposed rule and its companion substantially identical direct final rule published in the
The proposed rule published on July 11, 2016, 81 FR 44827, is withdrawn.
Thomas Howard, Chief of Staff, National Cemetery Administration (NCA), Department of Veterans Affairs, (40A), 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-6215. (This is not a toll-free number.)
In a proposed rule published in the
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 September 16, 2016, for publication.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), on January 11, 2016. The proposed revision was submitted by TDEC on behalf of the Knox County Department of Air Quality Management, which has jurisdiction over Knox County, Tennessee. The revision that EPA is proposing for approval amends the Knox County Air Quality Management Department's regulations, which are part of the Tennessee SIP, to address EPA's startup, shutdown, and malfunction (SSM) SIP call for Knox County. EPA is proposing approval of the January 11, 2016, SIP revision because the Agency has determined that it is in accordance with the requirements for SIP provisions under the Clean Air Act (CAA or Act).
Comments must be received on or before October 24, 2016.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2016-0359 at
Madolyn Sanchez, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9644. Ms. Sanchez can also be reached via
EPA is proposing to approve a revision to the Tennessee SIP at Knox County Regulation Section 32.0, “Use of Evidence.” The revision would remove the existing text of provision Section 32.1(C), which states: “A determination that there has been a violation of these regulations or orders issued pursuant thereto shall not be used in any lawsuit brought by any private citizen.” This text would be replaced with “(Reserved).” TDEC submitted the January 11, 2016, SIP revision to address EPA's final action entitled “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,” 80 FR 33839 (June 12, 2015), hereafter referred to as the “SSM SIP Action.”
On June 30, 2011, the Sierra Club (the Petitioner) filed a petition for rulemaking with the EPA Administrator, asking EPA to take action on specific provisions in the SIPs of 39 states. The petition included interrelated requests concerning state rule treatment of excess emissions by sources during periods of SSM. Exemptions from emission limits during periods of SSM exist in a number of state rules, some of which were adopted and approved into SIPs by EPA many years ago. The petition alleged that SSM exemptions undermine the emission limits in SIPs and threaten states' abilities to achieve and maintain compliance with national ambient air quality standards, thereby threatening public health and public welfare. The Petitioner requested that EPA either (i) notify the states of the substantial inadequacies in their SIPs and finalize a rule requiring them to revise their plans pursuant to CAA section 110(k)(5) (referred to as a “SIP call”), or (ii) determine that EPA's action approving the implementation plan provisions was in error and revise those approvals so that the SIPs are brought into compliance with the requirements of the CAA pursuant to CAA section 110(k)(6).
On February 22, 2013 (78 FR 12459), EPA proposed an action that would either grant or deny the Sierra Club petition with respect to each of the SIP provisions alleged to be inconsistent with the CAA. That proposal summarizes EPA's review of all of the provisions that were identified in the petition, providing a detailed analysis of each provision and explaining how each one either does or does not comply with the CAA with regard to excess emission events. For each SIP provision that appeared to be inconsistent with the CAA, EPA proposed to find that the existing SIP provision was substantially inadequate to meet CAA requirements and thus proposed to issue a SIP call under CAA section 110(k)(5) of the CAA.
On May 22, 2015, the EPA Administrator signed the final SSM SIP Action. That action responds to the Sierra Club petition by granting it with respect to the provisions determined to be deficient and denying it with respect to the others. The final action responds to all public comments received on the proposed action and calls for 36 states to submit corrective SIP revisions by November 22, 2016, to bring specified provisions into compliance with the CAA. In addition, the final action reiterates EPA's interpretation of the CAA regarding excess emissions during SSM periods and clarifies EPA's longstanding SSM Policy as it applies to SIPs.
With regard to the Knox County portion of the Tennessee SIP, the Petitioner objected to Regulation 32.1(C), arguing that the provision prevents required reports of SSM conditions from being used as evidence in citizen suits, thereby undermining the express authorization of citizen enforcement actions under the CAA. After consideration of public comments on the SSM SIP proposal, EPA agreed that the Knox County rule is inconsistent with the fundamental requirements of CAA sections 113(e)(1), 114(c) and 304 and the credible evidence rule
In the SSM SIP Action, EPA granted the Sierra Club's petition with respect to Knox County Regulation 32.1(C), finding this provision substantially inadequate to meet CAA requirements. Today's action, if finalized, would remove the existing text of this provision from Knox County's EPA-approved SIP regulation. EPA is proposing to find that this revision is consistent with the CAA and that it adequately addresses the SSM SIP call with respect to the Knox County portion of the Tennessee SIP.
In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the Knox County Regulation 32.0 entitled “Use of Evidence,” effective November 12, 2015, which replaces the language previously included in Section 32.1(C) with “(Reserved).” EPA has made, and will continue to make, these materials generally available through
EPA is proposing to approve the Tennessee SIP revision consisting of replacing the language in Section 32.1(C) currently in the EPA-approved SIP for Knox County with “(Reserved).” EPA is proposing approval of the January 11, 2016, SIP revision because the Agency has determined that it is in accordance with the requirements for SIP provisions under the CAA.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• 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
• 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).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule; notice of intent.
The U.S. Environmental Protection Agency (EPA) Region 7 is issuing a Notice of Intent to Delete 294 residential parcels of the Omaha Lead, Superfund Site (Site) located in Omaha, Nebraska, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of Nebraska, through the Nebraska Department of Environmental Quality, determined that all appropriate Response actions under CERCLA were completed at the identified parcels. However, this deletion does not preclude future actions under Superfund.
This partial deletion pertains to 294 residential parcels. The remaining parcels will remain on the NPL and are not being considered for deletion as part of this action.
Comments must be received on or before October 24, 2016.
Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-2003-0010, by one of the following methods:
The docket contains the information that was the basis for the partial deletion, specifically the documentation regarding the results of soil cleanup activities. Information regarding the optional voluntary cleanup activities such as the lead-based paint stabilization and interior dust sampling is not provided in the docket but is available from EPA on a case-by-case basis. Certain other material, such as copyrighted material, will be publicly available only in the hard copy. Publicly available docket materials are available either electronically in
Steve Kemp, Remedial Project Manager, U.S. Environmental Protection Agency, Region 7, SUPR/LMSE, 11201 Renner Boulevard, Lenexa, KS 66219, telephone (913) 551-7194, email:
Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:
EPA Region 7 is proposing to delete 294 residential parcels of the Omaha
EPA will accept comments on the proposal to partially delete this site for thirty (30) days after publication of this document in the
Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the 294 residential parcels of the Omaha Lead Superfund Site and demonstrates how they meet the deletion criteria.
The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:
i. Responsible parties or other persons have implemented all appropriate response actions required;
ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
The following procedures apply to deletion of the 294 residential parcels of the Site:
(1) EPA consulted with the State before developing this Notice of Intent for Partial Deletion.
(2) EPA has provided the state 30 working days for review of this notice prior to publication of it today.
(3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate.
(4) The State of Nebraska, through the Nebraska Department of Environmental Quality, has concurred with the deletion of the 294 residential parcels of the Omaha Lead Superfund site, from the NPL.
(5) Concurrently, with the publication of this Notice of Intent for Partial Deletion in the
(6) The EPA placed copies of documents supporting the proposed partial deletion in the deletion docket, and made these items available for public inspection and copying at the Site information repositories identified above.
If comments are received within the 30-day comment period on this document, EPA will evaluate and respond accordingly to the comments before making a final decision to delete the 294 residential parcels. If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to delete the 294 residential parcels of the Omaha Lead Superfund site, the Regional Administrator will publish a final Notice of Partial Deletion in the
Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
The following information provides EPA's rationale for deleting the 294 residential parcels of the Omaha Lead Superfund site from the NPL, as previously identified.
The Omaha Lead Site (OLS or Site [CERCLIS ID #NESFN0703481]) includes surface soils present at residential properties, child-care centers, and other residential-type properties in the city of Omaha, Douglas County, Nebraska. The properties were contaminated as a result of deposition of aerial emissions from historic lead smelting and refining operations. The OLS encompasses the eastern portion of the greater metropolitan area in Omaha, Nebraska. The site extends from the Douglas-Sarpy County line on the south, north to Read Street and from the Missouri River on the east to 56th Street on the west. The Site is centered around downtown Omaha, Nebraska, where two former lead-processing facilities operated. American Smelting and Refining Company, Inc. (ASARCO) operated a lead refinery at 500 Douglas Street in Omaha, Nebraska, for over 120 years. Aaron Ferer & Sons Company (Aaron Ferer), and later Gould Electronics, Inc., (Gould) operated a lead battery recycling plant located at 555 Farnam Street. Both ASARCO and Aaron Ferer/Gould facilities released lead-containing particulates into the atmosphere from their smokestacks. The lead particles were subsequently deposited on surrounding residential properties.
Beginning in 1984, the Douglas County Health Department (DCHD) monitored ambient air quality around the ASARCO facility. This air monitoring routinely measured ambient air lead concentrations in excess of the ambient air standard. Between 1972 and 1998 the DCHD measured the blood lead level in children within the county. The results of the measurements indicated a high incidence of elevated blood lead level in children. Blood lead screening of children living in zip codes located east of 45th Street have consistently
In 1998, the Omaha City Council requested assistance from the EPA to address the high incidence of children found with elevated blood lead levels by the DCHD. In 1999, the EPA initiated an investigation into the lead contamination under the authority of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). On April 30, 2003, the OLS was listed on the NPL (68 FR 23094).
The OLS includes those residential properties where EPA determines through soil sampling that soil lead levels represent an unacceptable risk to human health. Residential properties where soil sampling indicates that lead concentrations in the soil are below a level that represent an unacceptable risk are not included in the Site. Residential properties include those with high accessibility to sensitive populations (children seven years of age and younger [0 to 84 months] and pregnant or nursing women). The properties include single and multi-family dwellings, apartment complexes, child daycare facilities, vacant lots in residential areas, schools, churches, community centers, parks, greenways, and any other areas where children may be exposed to site-related contaminated media. Commercial and industrial properties are excluded from the definition of the Site.
The residential properties proposed for deletion from the NPL site were cleaned up under both CERCLA removal and remedial authority. Regardless of the authority used for the remediation of yards, the cleanup levels for soils for all the properties proposed for deletion were the same.
The initial EPA response was conducted under CERCLA removal authority. Due to the size of the site and the very large number of individual properties, it was necessary to prioritize sites for clean up. The prioritization was based on factors such as the elevated blood level of children at each property and the lead concentration in the soil at each property. The result was a series of action levels that reflected the priority of categories of sites. Consequently, the action level for the site changed over time from 2500 mg/kg to 400 mg/kg, as the highest priority sites were cleaned up first. The cleanup level was established using the Integrated Exposure Uptake Biokinetic (IEUBK) model to determine the concentration to which the lead is cleaned up at each property within the site. The cleanup level for the OLS is 400 mg/kg of lead in the soil. The cleanup level of 400 mg/kg was selected to allow for unlimited use and unrestricted exposure. The cleanup level has not changed, and all properties, regardless of the action level, were cleaned up to 400 mg/kg.
Beginning in March 1999, the EPA began collecting soil samples from properties that provided licensed child daycare services. The initial removal action dated August 2, 1999, consisted of excavation and replacement of contaminated soil where the lead concentration exceeded the action levels identified in the Action Memorandum. Response actions were implemented at properties that met either of the following criteria:
• A child seven years of age or younger (0 to 84 months) residing at the property was identified with an elevated blood level (EBL) exceeding 15 μg/dl (this EBL was reduced to 10 μg/dl in August 2001) and a soil sample collected from a non-foundation quadrant exhibited lead concentrations greater than 400 mg/kg, and
• A property was used as a child-care facility and a soil sample collected from a non-foundation quadrant exhibited a lead concentration greater than 400 mg/kg.
On August 22, 2002, EPA initiated a second removal action. This second removal action included all other residential type properties where the maximum non-foundation soil lead concentration exceeded an action level of 2,500 mg/kg. The 2002 Action Memorandum explicitly identifies the possibility of lead-based paint as a potential contributor to lead contamination of soils within thirty inches of the foundation of a painted structure. Due to the potential contribution of deteriorating lead-based paint near the foundations of structures, a lead concentration greater than 400 mg/kg in the soil in the drip zone (areas near structure foundations) was not, in itself, sufficient to trigger soil removal. However, if a soil sample from any mid-yard quadrant exceeded the action level, soil was removed from all areas of the property exceeding the 400 mg/kg cleanup level, including the drip zone. In November 2003, EPA amended the second removal action to reduce the action level to 1,200 mg/kg. In March 2004, EPA amended the second removal action to combine the two removal actions. In March 2005, EPA amended the removal action to reduce the action level from 1200 mg/kg to 800 mg/kg.
At properties determined to be eligible for response under either of the Action Memoranda soil with lead concentrations greater than the cleanup level was excavated and replaced with clean soil and the excavated areas were revegetated.
Beginning with the construction season of 2005, the scope of the removal action was expanded to address the requirements of the 2004 Interim ROD to include: (1) Stabilization of deteriorating exterior lead-based paint at properties where the continued effectiveness of the soil remediation was threatened; (2) response to interior dust at properties where interior dust lead levels exceeded applicable criteria; (3) public health education; and (4) participation in a comprehensive remedy with other agencies and organizations that addresses all identified lead hazards in the Omaha community.
As part of the RI/FS EPA developed a Human Health Risk Assessment (HHRA) for the Site using site-specific information collected during the OLS Remedial Investigation. Lead was identified as the primary contaminant of concern. The HHRA also identified arsenic as a potential contaminant of concern, but arsenic was eliminated based on its relatively low overall risk to residents and lack of connection to the release from the industrial sources being addressed by this Superfund action.
The risk assessment for lead focused on young children under the age of seven (0 to 84 months) who are site residents. Young children are most susceptible to lead exposure because they have higher contact rates with soil or dust, absorb lead more readily than adults absorb, and are more sensitive to the adverse effects of lead than are older children and adults. The effect of greatest concern in children is impairment of the nervous system, including learning deficits, reduced intelligence, and adverse effects on behavior. The IEUBK model for lead in children was used to evaluate the risks posed to young children (0 to 84 months) resulting from the lead contamination at the site. Because lead does not have a nationally-approved reference dose (RfD), cancer slope factor, or other accepted toxicological factor which can be used to assess risk, standard risk assessment methods cannot be used to evaluate the health risks associated with lead contamination. The modeling results
In October 2008, EPA released a draft Final Remedial Investigation. Based on the 2008 data set, EPA established the boundary of the Final Focus Area for the Site. The Final Focus Area is generally bounded by Read Street to the north, 56th Street to the west, Harrison Street (Sarpy County line) to the south, and the Missouri River to the east, and encompasses 17,280 acres (27.0 square miles). By the time the Final Remedial Investigation was completed, EPA had collected soil samples from 37,076 residential properties, including 34,565 properties within the Final Focus Area's boundary. In total, 34.2 percent of properties sampled through completion of the 2008 RI had at least one mid-yard sample with a soil lead level exceeding 400 mg/kg. In addition to soil sampling, EPA collected dust samples from the interior of 159 residences to support the OLS Human Health Risk Assessment.
EPA completed the Final Record of Decision (ROD) for the OLS in May 2009. The Remedial Action Objective is to reduce the risk of exposure of young children to lead such that an individual child, or group of similarly exposed children, have no greater than a 5 percent chance of having a blood-lead concentration exceeding 10 μg/dl. The selected remedy include the following components:
• Excavation and Replacement of Soils Exceeding 400 mg/kg Lead
• Stabilization of Deteriorating Exterior Lead-Based Paint
• Response to Lead-Contaminated Interior Dust
• Health Education
• Operation of a Local Lead Hazard Registry as a type of Institutional Control
Each of these components is described below.
Excavation of soils was accomplished using lightweight excavation equipment and hand tools in the portions of the yard where the concentration of lead in the surface soil exceeded 400 mg/kg. Excavation continued in all quadrants, play zones, and drip zone areas exceeding 400 mg/kg lead until the residual lead concentration measured at the exposed surface of the excavation was less than 400 mg/kg in the upper foot, or less than 1,200 mg/kg at depths greater than one foot. Typically, soil excavation depths were between six and ten inches in depth. Soils in garden areas were excavated until reaching a residual concentration of less than 400 mg/kg in the upper two feet measured from the original surface, or less than 1,200 mg/kg at depths greater than two feet.
After confirmation sampling verified that cleanup goals were achieved, the excavated areas were backfilled with clean soil to original grade and sod was placed over the remediated areas.
EPA's remediation contractors stockpiled contaminated soil in staging areas, collected samples, and subsequently transported soil to an off-site subtitle D solid waste disposal landfill for use as daily cover and/or disposal.
EPA used the lead-based paint assessment protocol, presented in the Final Lead-Based Paint Recontamination Study Report prepared for the OLS, to determine eligibility for exterior lead-based paint stabilization at those properties where soil lead concentrations exceed 400 mg/kg. At those properties where the exterior lead-based paint assessment identified a threat from deteriorating paint to the continued protectiveness of the soil remedy, the owner of the property was offered stabilization of painted surfaces on structures located on the property. Exterior lead-based paint stabilization is not mandatory and was provided to those qualifying property owners who chose to have their exterior paint stabilized. Removal of loose and flaking lead-based paint was performed using lead-safe practices as described in EPA's Renovate, Repair and Painting Rule. The practices include wet scraping, and collection of paint chips using plastic sheeting. Scraped areas were primed and all previously painted surfaces had two coats of paint applied.
As part of the final remedy, residents at eligible properties are provided the opportunity to have interior dust sampled. The interior dust response is not mandatory and the resident may choose to decline. If the property owner agrees, EPA collects samples of dust from interior surfaces. The analytical data is provided to the resident/tenant in a letter and the letter informs them whether any HUD criteria are exceeded. The Douglas County Health Department conducts follow up activities at any residence where the concentration of lead in the interior dust levels exceed the HUD criteria. For those residences that qualify and where the resident agrees, the residents are provided with a high-efficiency household vacuum cleaner, training on the maintenance and the importance of proper usage of the vacuum, and education on mitigation of household lead hazards. The Douglas County Health Department also provides training and education regarding the need to mitigate interior dust.
Exterior lead-based paint stabilization and interior dust response were conducted retroactively at properties where soil cleanups were performed under CERCLA removal authority, as well as to properties addressed under CERCLA remedial authority.
There are a number of identified lead hazards within the OLS, not all of which are connected to the contaminant source of the OLS. To better address all potential lead sources within the OLS, a health education program was developed and continues to be implemented to increase public awareness and mitigate exposure. An active educational program continues in cooperation with agencies and organizations that include ATSDR, the Nebraska Department of Health and Human Services (NDHHS), DCHD, local non-governmental organizations, and other interested parties throughout the duration of the remedial action. The following, although not an exhaustive list, indicate the types of educational activities provided at the Site:
• Support for in-home assessments for children identified with elevated blood lead levels.
• Development and implementation of lead poisoning prevention curriculum in schools.
• Support for efforts to increase community-wide blood lead monitoring.
• Physicians' education for diagnosis, treatment, and surveillance of lead exposure.
• Operation of Public Information Centers to distribute information, and respond to questions about the EPA response activities and lead hazards in the community.
• Use of mass media (television, radio, internet, print media, etc.) to distribute health education messages.
The Omaha Lead Registry, (available at
EPA worked extensively with the Omaha community through a variety of communication vehicles including, but not limited to: Local speaking engagements, participation in citizens' groups and city council meetings, local public access television, public service announcements on local cable television, coverage on radio, television, in local and national newspapers, mass mailings of informational materials, public outreach by telephone, conducting public meetings, and through the EPA Web site.
EPA has been performing outreach to Omaha citizens, elected officials, school officials, health officials, the media, nonprofit groups, and others since becoming involved in the project in an effort to convey information about the hazards of lead poisoning, particularly the ways that lead affects the health of children. The EPA participated in numerous formal and informal meetings to explain EPA's role and commitment in Omaha, convey information about the Superfund process, and provide general information about the site and lead contamination. EPA responds to inquiries on a daily basis regarding the site and individual property owner's sampling results.
In January 2004, a Community Advisory Group (CAG) was formed for the OLS site. A CAG is a committee, task force, or board made up of residents affected by a Superfund site. They provided a public forum where representatives with diverse community interests could present and discuss their needs and concerns related to the site and the cleanup process. The CAG was discontinued after the last meeting was held in October 2011. A new group, Child Lead Poisoning Prevention Group, formed. The first meeting of the Child Lead Poisoning Group was held at City Hall in May 2012. The Group is no longer active.
EPA completed the first Five-Year Review for the site in September 2014. Five-Year Reviews for the site are statutory. The triggering action for the Five-Year Review is the completion of the Final Record of Decision for Operable Unit 2, completed in May 2009.
The protectiveness of the remedy was deferred in the Five-Year Review because the remedy has not been completed at all of the properties within the site boundary. However, clean up activities at the 294 residential parcels included in this partial deletion action are complete and protective of human health.
The next Five-Year Review will be completed in 2019.
EPA Region 7 completed the EPA lead portion of the remedial action on December 29, 2015. The City of Omaha and the Douglas County Health Department will be performing the remaining field work. As of December 29, 2015, EPA collected soil samples from 42,047 properties. There are 489 remaining properties to be sampled. The EPA has obtained access to collect samples from 163 of the 489 properties.
Based on the soil sampling results, 14,019 properties were eligible for soil remediation. The EPA remediated lead contaminated soil at 13,090 properties (93 percent) of the properties that were eligible for remediation. There are approximately 929 remaining properties that are eligible for soil remediation. The EPA obtained access to remediate fifty-one of the remaining properties.
The EPA tested 12,057 properties for the presence of lead-based paint (LBP) and determined 6,782 properties qualified for LBP stabilization. The EPA has completed LBP stabilization on 6,249, (92 percent) of the eligible properties.
The EPA collected dust samples from 3,933 properties consisting of 4,477 residences for lead contaminated dust. These numbers reflect the fact that some of the properties are multi-residence properties.
EPA completed Cooperative Agreements with the City of Omaha and the Douglas County Health Department that provide funds to allow these local government agencies to continue efforts to obtain access to the remaining properties and conduct sampling and remediation activities at those properties where they obtain access.
In accordance with 40 CFR 300.425(e), Region 7 of the EPA finds that the 294 residential parcels of the Omaha Lead Superfund site (the subject of this deletion) meet the substantive criteria for deletion from the NPL. EPA has consulted with and has the concurrence of the State of Nebraska.
All responsible parties or other persons have implemented all appropriate response actions required. All appropriate Fund-financed response under CERCLA was implemented, and no further response action by responsible parties is appropriate.
Environmental protection, air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757,3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p.193.
Office of the Secretary, Interior.
Proposed rule.
Congress recently passed the Indian Trust Asset Reform Act (ITARA), which requires the Secretary of the Interior to establish and publish in the
Please submit written comments by November 21, 2016.
You may submit comments on the proposed rule by any of the following methods:
Comments on the Paperwork Reduction Act information collections contained in this rule are separate from comments on the substance of the rule. Submit comments on the information collection requirements in this rule to the Desk Officer for the Department of the Interior by email at
We cannot ensure that comments received after the close of the comment period (see
Ms. Elizabeth Appel, Office of Regulatory Affairs and Collaborative Action—Indian Affairs at
On June 22, 2016, President Obama signed into law the Indian Trust Asset Reform Act, Public Law 114-178. Title III of this Act. In relevance to this rulemaking, the Act requires Interior to establish minimum qualifications for individuals to prepare appraisals and valuations of Indian trust property and allow an appraisal or valuation by a qualified person to be considered final without being reviewed or approved by Interior.
This proposed rule would establish the minimum qualifications for individuals to prepare appraisals and valuations of Indian trust property and allow an appraisal or valuation by a qualified person to be considered final without being reviewed or approved by Interior.
The Act also requires appraisals and valuations of Indian trust property to be administered by a single administrative entity within Interior. This rule is proposed under the Office of the Secretary for Department of the Interior, but may be finalized by another entity or agency within Interior depending on what single entity ultimately administers appraisals and valuations of Indian trust property.
This rule would establish a new Code of Federal Regulations (CFR) part to establish the minimum qualifications for appraisers, employed by or under contract with an Indian tribe or individual Indian, to become qualified appraisers who may prepare an appraisal or valuation of Indian property that will, in certain circumstances, be accepted by the Department without further review or approval. We note that, because the Department is not reviewing and approving the appraisal or valuation, it is not liable for any deficiency or inaccuracy in the appraisal or valuation.
Subpart A, General Provisions, would define terms used in the regulation, describe the purpose of the regulation, and provide the standard Paperwork Reduction Act compliance statement. The terms are defined to include, in the context of this regulation, any property that the U.S. Government holds in trust or restricted status for an Indian tribe or individual Indian, to include not just land, but also natural resources or other assets. Other important terms include “appraisal,” “valuation,” and “qualified appraiser.” Consistent with the statutory direction, the purpose of the regulations is written broadly, to include appraisals or valuations of any Indian trust property, including:
• Appraisals and valuations of real property;
• Appraisals and valuations of timber, minerals, or other property to the extent they contribute to the value of the whole property (for use in appraisals and valuations of real property); and
• Appraisals and valuations of timber, minerals, or other property separate from appraisals and valuations of real property.
Subpart B, Appraiser Qualifications, would establish the minimum qualifications an appraiser must meet to be considered a “qualified appraiser” and would establish that the Secretary must verify that the appraiser meets those minimum qualifications. The Department seeks comment as to whether these minimum qualifications are appropriate for both real property appraisals and valuations and for appraisals and valuations of timber, minerals, or other property separate from appraisals and valuations of real property.
This subpart would require that the verification information be submitted contemporaneously with the appraisal or valuation so that the Secretary can verify that the appraiser is a qualified appraiser at that point in time. The Department seeks ideas for allowing for verification in a way that would not require submission with each appraisal, but would ensure there were no changes in the appraiser's qualifications (
Subpart C, Appraisals and Valuations, would require the submission of appraisals and valuations to the Department for transactions requiring Secretarial approval under titles 25 and 43 of the Code of Federal Regulations (
The proposed rule would require the Department to forego review and
This subpart proposes to exempt certain transactions, thereby requiring Departmental review of the appraisal or valuation. The exempted transactions include any legislation expressly requiring the Department to review and approve an appraisal or valuation, such as the Land Buy Back Program under Claims Resolution Act of 2010 (Pub. L. 111-291), and purchase at probate under 43 CFR part 30, because the judge will not be in a position to verify an appraiser's qualifications.
The Department is hosting listening sessions and consultation sessions with Indian tribes and trust beneficiaries on each of the items in Title III of ITARA (see “I. Background” for the list of items) at the dates and locations announced in 81 FR 47176 (July 20, 2016), as corrected by 81 FR 51210 (August 3, 2016). The Department will also consult on this proposed rule at those listening sessions and consultation sessions.
The Department seeks comment on any aspect of this rule that commenters wish to comment on, but also specifically poses the following questions for your consideration in commenting:
1. Do any tribes grant Certified General Appraiser licenses similar to those granted by States? If so, are the prerequisite requirements of individuals receiving this license consistent with the requirements established by the Appraisal Qualifications Board for State certification?
2. Are the minimum qualifications in this regulation appropriate for appraisals and valuations of timber, minerals, or other property separate from appraisals and valuations of real property? If not, what qualifications would be better suited to those appraisals and valuations?
3. Is there a way to allow for the Department to verify an appraiser's qualifications, without requiring the qualifications to be submitted with each appraisal, that would ensure the appraiser is qualified at the time the appraisal is submitted (and that there have been no changes in the appraiser's qualifications)?
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:
(a) Will not have an annual effect on the economy of $100 million or more.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(c) Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of the U.S.-based enterprises to compete with foreign-based enterprises.
This proposed rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The proposed rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This proposed rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.
Under the criteria in section 1 of Executive Order 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.
This proposed rule complies with the requirements of Executive Order 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this proposed rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have identified substantial direct effects on federally recognized Indian tribes that will result from this rulemaking. Tribes may be substantially and directly affected by this rulemaking because it allows for the submission of appraisals for transactions involving Indian property without Departmental review and approval. As such, the Department is consulting with tribes on this proposed rule as part of the consultation sessions addressing ITARA.
This proposed rule contains an information collection that requires approval by OMB. The Department is seeking approval of a new information collection and a revision to an existing regulation, as follows.
A Federal agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless the form or regulation requesting the information displays a currently valid OMB Control Number.
This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because this is an administrative and procedural regulation. (For further information see 43 CFR 46.210(i)). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.
This proposed rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
a. Be logically organized;
b. Use the active voice to address readers directly;
c. Use clear language rather than jargon;
d. Be divided into short sections and sentences; and
e. Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
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.
Indians, Indians—claims, Indians—lands, Mineral resources.
5 U.S.C. 301; Pub. L. 114-178.
(1) Any person who is a member of any Indian tribe, is eligible to become a member of any Indian tribe, or is an owner as of October 27, 2004, of a trust or restricted interest in land;
(2) Any person meeting the definition of Indian under the Indian Reorganization Act (25 U.S.C. 479) and the regulations promulgated thereunder; or
(3) With respect to the inheritance and ownership of trust or restricted land in the State of California under 25 U.S.C. 2206, any person described in paragraph (1) or (2) of this definition or any person who owns a trust or restricted interest in a parcel of such land in that State.
This part describes the minimum qualifications for appraisers, employed by or under contract with an Indian tribe or individual Indian, to become qualified appraisers who may prepare an appraisal or valuation of Indian property that will be accepted by the Department without further review or approval.
This part applies to anyone preparing or relying upon an appraisal or valuation of Indian property.
The collections of information contained in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501
(a) An appraiser must meet the following minimum qualifications to be a qualified appraiser under this part:
(1) The appraiser must hold a current Certified General Appraiser license in the State in which the property appraised or valued is located;
(2) The appraiser must be in good standing with the appraiser regulatory agency of the State in which the property appraised or valued is located; and
(3) The appraiser must comply with the Uniform Standards of Professional Appraisal Practice (USPAP) rules and provisions applicable to appraisers (including but not limited to Competency requirements applicable to the type of property being appraised or valued and Ethics requirements). This includes competency in timber and mineral valuations if applicable to the subject property.
All qualified appraisers of Indian property must meet the Competency requirements of USPAP for the type of property being appraised or valued. Competency can be demonstrated by previous completed assignments on the type of properties being appraised, additional education or training in specific property types, or membership and/or professional designation by a related professional appraisal association or group.
The Secretary will verify the appraiser's qualifications to determine whether the appraiser meets the requirements of § 100.200.
The tribe or individual Indian must submit the following with the appraisal or valuation:
(a) A copy of the appraiser's current Certified General Appraiser license;
(b) A copy of the appraiser's qualifications statement;
(c) The appraiser's self-certification that the appraiser meets the criteria in § 100.200; and
(d) If the property contains natural resource elements that contribute to the value of the property, such as timber or minerals, a list of the appraiser's additional qualifications for the specific type of property being valued in the appraisal report.
The tribe or individual Indian must submit the package of appraiser qualifications to the Secretary with the appraisal or valuation.
Appraisals and valuations must be submitted to us for transactions requiring Secretarial approval under titles 25 and 43 of the CFR.
(a) The Department will not review the appraisal or valuation of Indian property and the appraisal or valuation will be considered final as long as:
(1) The submission acknowledges the intent of the Indian tribe or individual
(2) The appraisal or valuation was completed by a qualified appraiser meeting the requirements of this part; and
(3) No owner of any interest in the Indian property objects to use of the appraisal or valuation without Departmental review and approval.
(b) The Department must review and approve the appraisal or valuation if:
(1) Any of the criteria in paragraph (a) of this section are not met; or
(2) The appraisal or valuation was submitted for:
(i) Purchase at probate under 43 CFR 30;
(ii) The Land Buy-Back Program for Tribal Nations; or
(iii) Specific legislation requiring the Department to review and approve an appraisal or valuation.
If you do not specifically request waiver of Departmental review and approval under § 100.300(a)(1), the Department will review the appraisal or valuation.
If the Indian tribe or individual Indian does not agree with the submitted appraisal or valuation, the Indian tribe or individual Indian may request that the Department perform an appraisal or valuation instead of relying on the submitted appraisal or valuation.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the rusty patched bumble bee (
We will accept comments received or postmarked on or before November 21, 2016. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Peter Fasbender, Field Supervisor, U.S. Fish and Wildlife Service, Twin Cities Ecological Services Field Office, 4101 American Blvd. E., Bloomington, MN 55425, by telephone 952-252-0092, extension 210. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
An SSA team prepared an SSA report for the rusty patched bumble bee. The SSA team was composed of U.S. Fish and Wildlife Service biologists, in consultation with other species experts. The SSA represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the rusty patched bumble bee. The SSA underwent independent peer review by 15 scientists with expertise in bumble bee biology, habitat management, and stressors (factors negatively affecting the
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) The rusty patched bumble bee's biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns (in particular, we are interested in the locations and dates of surveys targeting bumble bees within the historical range of the rusty patched bumble bee, including negative survey results);
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat, or both.
(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing conservation measures or regulations that may be addressing those threats.
(4) The reasons why any habitat should or should not be determined to be critical habitat for the rusty patched bumble bee as provided by section 4 of the Act, including physical or biological features within areas that are occupied or specific areas outside of the geographic area that are occupied that are essential for the conservation of the species.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Section 4(b)(5) of the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531
In accordance with our joint policy on peer review published in the
We received a petition from The Xerces Society for Invertebrate Conservation (Xerces Society) to list the rusty patched bumble bee as an endangered species on February 5, 2013. On May 13, 2014, the Xerces Society filed a lawsuit against the Service for failure to complete a petition finding in accordance with statutory deadlines. Per a December 24, 2014, settlement agreement with the Xerces Society, we agreed to make a 90-day finding no later than September 30, 2015, and, if that finding were substantial, to complete a 12-month finding no later than September 30, 2016. On September 18, 2015, we published in the
A thorough review of the taxonomy, life history, and ecology of the rusty patched bumble bee (
The rusty patched bumble bee is a eusocial (highly social) organism forming colonies consisting of a single queen, female workers, and males. Colony sizes of
The rusty patched bumble bee's annual cycle begins in early spring with colony initiation by solitary queens and progresses with the production of workers throughout the summer and ending with the production of reproductive individuals (males and potential queens) in mid- to late summer and early fall (Macfarlane
The rusty patched bumble bee has been observed and collected in a variety of habitats, including prairies, woodlands, marshes, agricultural landscapes, and residential parks and gardens (Colla and Packer 2008, p. 1381; Colla and Dumesh 2010, p. 46; USFWS rusty patched bumble bee unpublished geodatabase 2016). The species requires areas that support sufficient food (nectar and pollen from diverse and abundant flowers), undisturbed nesting sites in proximity to floral resources, and overwintering sites for hibernating queens (Goulson
Bumble bees are generalist foragers, meaning they gather pollen and nectar from a wide variety of flowering plants (Xerces 2013, pp. 27-28). The rusty patched bumble bee is one of the first bumble bees to emerge early in the spring and the last to go into hibernation, so to meet its nutritional needs, the species requires a constant and diverse supply of blooming flowers.
Rusty patched bumble bee nests are typically in abandoned rodent nests or other similar cavities (Plath 1922, pp. 190-191; Macfarlane
Prior to the mid- to late 1990s, the rusty patched bumble bee was widely distributed across areas of 31 States/Provinces: Connecticut, Delaware, District of Columbia, Georgia, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Ontario, Pennsylvania, Quebec, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, West Virginia, and Wisconsin. Since 2000, the rusty patched bumble bee has been reported from 13 States/Provinces: Illinois, Indiana, Maine, Maryland, Massachusetts, Minnesota, North Carolina/Tennessee (single record on the border between the States), Ontario, Ohio, Pennsylvania, Virginia, and Wisconsin (Figure 1).
The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. We completed a comprehensive assessment of the biological status of the rusty patched bumble bee, and prepared a report of the assessment, which provides a thorough account of the species' overall viability. We define viability as the ability of the species to persist over the long term and, conversely, to avoid extinction. In this section, we summarize the conclusions of that assessment, which can be accessed at Docket No. FWS-R3-ES-2015-0112 on
To assess rusty patched bumble bee viability, we used the three conservation biology principles of resiliency, representation, and redundancy (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental stochasticity (for example, wet or dry, warm or cold years); representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes); and redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, hurricanes). In general, the more redundant, representative, and resilient a species is, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.
We evaluated the change in resiliency, representation, and redundancy from the past until the present, and projected the anticipated future states of these conditions. To forecast the biological condition into the future, we devised likely future scenarios by eliciting expert information on the primary stressors anticipated in the future to the rusty patched bumble bee: Pathogens, pesticides, habitat loss and degradation, climate change, and small population dynamics. To assess resiliency, we evaluated the trend in rusty patched bumble bee occurrences (populations) over time and the trend in the species abundance relative to all
Our analyses indicate that the resiliency, representation, and redundancy of the rusty patched bumble bee have all declined since the late 1990s and are projected to continue to decline over the next several decades. Historically, the species was abundant and widespread, with hundreds of populations across an expansive range, and was the fourth-ranked
Since the late 1990s, rusty patched bumble bee abundance and distribution has declined significantly. The number of populations has declined by 91 percent (from 845 historically (historical = occurrences in the period 1900-1999) to 69 currently (current = occurrences in the period 2000-2015)), and the rusty patched bumble bee's relative abundance declined from 8 percent historically, to 1 percent currently. Many of the current populations, however, have not been reconfirmed since the early 2000s and may no longer persist. For example, no rusty patched bumble bees were observed at any of the historical sites that were revisited in 2015. Also, many of the current populations (64 of 69 (93 percent)) are documented by 5 or fewer individuals; only 2 populations are documented by more than 10 individuals (healthy colonies consist of up to 1,000 individual workers, and a healthy population contains tens to hundreds of colonies (Macfarlane
Along with the loss of populations, a marked decrease in the spatial extent has occurred in recent times. As noted above, the rusty patched bumble bee was broadly distributed historically across the eastern United States, upper Midwest, and southern Quebec and Ontario, an area comprising 15 ecoregions, 31 States/Provinces, and 378 counties. Since 2000, the species' distribution has declined across its range, with current records from 6 ecoregions, 13 States/Provinces, and 41 counties (Figure 1). The spatial extent of the species' current range has been reduced to 8 percent of its historical extent. The loss of occurrences has increased the risk of ecoregion-wide extirpations due to catastrophic events (
Many of the existing populations continue to face the effects of past and ongoing stressors, including pathogens, pesticides, habitat loss and degradation, small population dynamics, and climate change. A brief summary of these primary stressors is presented below; for a full description of these stressors, refer to Chapter 5 of the SSA report.
In addition to fungi such as
Neonicotinoids are a class of insecticides used to target pests of agricultural crops, forests (for example, emerald ash borer), turf, gardens, and pets and have been strongly implicated as the cause of the decline of bees in general (European Food Safety Authority 2015, p. 4211; Pisa
Most studies examining the effect of neonicotinoids on bees have been conducted using the European honey bee (
Although habitat loss has established negative effects on bumble bees (Goulson
Like many insect species, the rusty patched bumble bee has haplodiploidy sex differentiation, in which haploid (having one set of chromosomes) males are produced from unfertilized eggs and diploid (containing two complete sets of chromosomes) females from fertilized eggs (Zayed 2009, p. 239). When females mate with related males, however (as is more likely to happen in small populations), half of the females' progeny will develop into diploid males instead of females. Having fewer females decreases the health of the colony, as males do not contribute food resources to the colony (Ellis
In summary, the magnitude of population losses and range contraction to date have greatly reduced the rusty patched bumble bee's ability to adapt to changing environmental conditions and to guard against further losses of adaptive diversity and potential extinction due to catastrophic events. In reality, the few populations persisting and the limited distribution of these populations have substantially reduced the ability of the rusty patched bumble bee to withstand environmental variation, catastrophic events, and changes in physical and biological conditions. Coupled with the increased risk of extirpation due to the interaction of reduced population size and its haplodiploidy reproductive strategy, the rusty patched bumble bee may lack the resiliency required to sustain populations into the future, even without further exposure to stressors.
As required by the Act, we considered the five factors in assessing whether the rusty patched bumblebee is an endangered species, as cited in the petition, throughout all of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the bumble bee. We reviewed the petition, information available in our files, and other available published and unpublished information, and we consulted with recognized bumble bee experts and other Federal and State agencies. We identify the threats to the rusty patched bumble bee to be attributable to habitat loss and degradation (Factor A), impacts of pathogens (Factor C), impacts of pesticides (Factor E), the effects of small population size (Factor E), and effects of climate change (Factor E). On the basis of the best scientific and commercial information available, we find that the petitioned action to list the rusty patched bumble bee as an endangered
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the rusty patched bumble bee. Habitat loss and degradation from residential and commercial development and agricultural conversion occurred rangewide and resulted in fragmentation and isolation of the species from formerly contiguous native habitat. Habitat loss and degradation has resulted in the loss of the diverse floral resources needed throughout the rusty patched bumble bee's long feeding season, as well as loss of appropriate nesting and overwintering sites. Although much of the habitat conversion occurred in the past, the dramatic reduction and fragmentation of habitat has persistent and ongoing effects on the viability of populations; furthermore, conversion of native habitats to agriculture (
The species' range has been reduced by 92 percent, and its current distribution is limited to just one to a few populations in each of 12 States and Ontario. Ninety-three percent of the 69 current populations are documented by 5 or fewer individuals, and only 2 populations are documented by more than 10 individuals. Drought frequency and increased duration of high temperatures are likely to increase due to climate change, further restricting floral resources, reducing foraging times, and fragmenting or eliminating populations (Factor E). Fungi such as
Pesticide use, including the use of many insecticides that have known lethal and sublethal effects to bumble bees, is occurring at increasing levels rangewide (Factor E). Similarly, herbicide use occurs rangewide and can reduce available floral resources (Factor A). Additionally, the rusty patched bumble bee is not able to naturally recolonize unoccupied areas that are not connected by suitable dispersal habitat (Factors A and E).
The rusty patched bumble bee's reproductive strategy makes it particularly vulnerable to the effects of small population size, and the species can experience a “diploid male vortex,” where the number of nonviable males increases as abundance declines, thereby further reducing population size (Factor E). There is virtually no redundancy of populations within each occupied ecoregion, further increasing the risk of loss of representation of existing genetic lineages and, ultimately, extinction.
These threats have already resulted in the extirpation of the rusty patched bumble bee throughout an estimated 92 percent of its range, and these threats are likely to continue or increase in severity. Although the relative contribution of pesticides, pathogens, loss of floral resources, and other threats to the species' past and continued decline is not known, the prevailing data indicate that threats are acting synergistically and additively and that the combination of multiple threats is likely more harmful than a single threat acting alone. These threats are occurring rangewide, are expected to continue or increase in the future, and are significant because they further reduce the already limited distribution and decrease the resiliency of the rusty patched bumble bee within those limited areas.
Existing regulatory mechanisms vary across the species' range, and although the rusty patched bumble bee is listed as State endangered in Vermont (which prohibits taking, possessing, or transporting), as special concern (no legal protection) in Connecticut, Michigan, and Wisconsin, and is protected under Canada's Species At Risk Act, these mechanisms do not currently ameliorate threats to the rusty patched bumble bee.
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that the rusty patched bumble bee is presently in danger of extinction throughout its entire range. Relative to its historical (pre-2000s) condition, the abundance of rusty patched bumble bees has declined precipitously over a short period of time. Only nine percent of the locations where it was historically found are currently occupied, and the abundance of the species relative to other
Further adding to the species' imperilment, its reproductive strategy (haplodiploidy) renders bumble bees particularly sensitive to loss of genetic diversity, which is further exacerbated by decreasing population size (for example, diploid male vortex). The small number of persisting colonies continues to be affected by high-severity stressors, including pathogens, pesticides, habitat loss and degradation, effects of climate change, and small population dynamics throughout all of the species' range. These stressors are acting synergistically and additively on the species, and the combination of multiple stressors is more harmful than a single stressor acting alone. Due to the above factors, the species does not have the adaptive capacity in its current state to withstand physical and biological changes in the environment presently or into the future, and optimistic modeling suggests that all but one of the ecoregions are predicted to be extirpated within 5 years (Szymanski
In conclusion, the species' overall range has been considerably reduced and the remaining populations are under threat from a variety of factors acting in combination to significantly reduce the overall viability of the species. The risk of extinction is currently high because there are a small number of remaining populations, most of which are extremely small in size (all but 2 have 10 or fewer individuals), in a severely reduced range. Therefore, on the basis of the best available scientific and commercial information, we propose listing the rusty patched bumble bee as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act. We find that a threatened species status is not appropriate for the rusty patched bumble bee because (1) given its current condition, the species lacks the ability to withstand physical and biological changes in the environment presently and into the future; (2) based on the prediction that all but one ecoregion
Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the rusty patched bumble bee is endangered throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37577; July 1, 2014).
Section 4(a)(3) of the Act, as amended, and implementing regulations in title 50 of the Code of Federal Regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be an endangered or threatened species. Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as: An area that may generally be delineated around species' occurrences, as determined by the Secretary (
Conservation, as defined under section 3 of the Act, means to use, and the use of, all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Critical habitat designation does not allow the government or public to access private lands, nor does it require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult under section 7(a)(2) of the Act, but even if consultation leads to a finding that the action would likely cause destruction or adverse modification of critical habitat, the resulting obligation of the Federal action agency and the landowner is not to restore or recover the species, but rather to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) that are essential to the conservation of the species and (2) that may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features, we focus on the specific features that support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed if we determine that such areas are essential for the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when any of the following situations exist: (i) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (ii) such designation of critical habitat would not be beneficial to the species. The regulations also provide that, in determining whether a designation of critical habitat would not be beneficial to the species, the factors the Services may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat” (50 CFR 424.12(a)(1)(ii)).
We do not know of any imminent threat of take attributed to collection or vandalism for the rusty patched bumble bee. The available information does not
The potential benefits of designation may include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is unoccupied; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the protected species. Because designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, designation of critical habitat may be prudent for the rusty patched bumble bee.
Our regulations (50 CFR 424.12(a)(2)) further state that critical habitat is not determinable when one or both of the following situations exists: (1) Information sufficient to perform required analysis of the impacts of the designation is lacking; or (2) the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.
Delineation of critical habitat requires, within the geographical area occupied by the species, identification of the physical or biological features essential to the species' conservation. Information regarding the rusty patched bumble bee life functions is complex, and complete data are lacking for most of them. We require additional time to analyze the best available scientific data in order to identify specific areas appropriate for critical habitat designation and to prepare and process a proposed rule. Accordingly, we find designation of critical habitat for these species in accordance with section 4(3)(A) of the Act to be “not determinable” at this time.
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to address the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a draft and final recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. When completed, the draft recovery plan and the final recovery plan will be available on our Web site (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (for example, restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, West Virginia, and Wisconsin would be eligible for Federal funds to implement management actions that promote the protection or recovery of the rusty patched bumble bee. Information on our grant programs that are available to aid species recovery can be found at:
Although the rusty patched bumble bee is only proposed for listing under the Act at this time, please let us know if you are interested in participating in conservation efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands, for example, lands administered
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the
Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act; this list is not comprehensive:
(1) Unauthorized handling or collecting of the species;
(2) The unauthorized release of biological control agents that attack any life stage of the rusty patched bumble bee, including the unauthorized use of herbicides, pesticides, or other chemicals in habitats in which the rusty patched bumble bee is known to occur;
(3) Unauthorized release of nonnative species or native species that carry pathogens, diseases, or fungi that are known or suspected to adversely affect rusty patched bumble bee where the species is known to occur;
(4) Unauthorized modification, removal, or destruction of the habitat (including vegetation and soils) in which the rusty patched bumble bee is known to occur; and
(5) Unauthorized discharge of chemicals or fill material into any wetlands in which the rusty patched bumble bee is known to occur.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Twin Cities Ecological Services Field Office (see
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this proposed rule are the staff members of the Twin Cities Ecological Services Field Office and the Region 3 Regional Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless otherwise noted.
(h) * * *
Animal and Plant Health Inspection Service, USDA.
Notice of intent.
We are giving notice that the Secretary of Agriculture intends to reestablish the Secretary's Advisory Committee on Animal Health for a 2-year period. The Secretary has determined that the Committee is necessary and in the public interest.
Dr. Diane L. Sutton, Designated Federal Officer, VS, APHIS, 4700 River Road, Unit 43, Riverdale, MD 20737; (301) 851-3509.
Pursuant to the Federal Advisory Committee Act (FACA, 5 U.S.C. App.), notice is hereby given that the Secretary of Agriculture intends to reestablish the Secretary's Advisory Committee on Animal Health (the Committee) for 2 years.
The Committee advises the Secretary on strategies, policies, and programs to prevent, control, or eradicate animal diseases. The Committee considers agricultural initiatives of national scope and significance and advises on matters of public health, conservation of national resources, stability of livestock economies, livestock disease management and traceability strategies, prioritizing animal health imperatives, and other related aspects of agriculture. The Committee Chairperson and Vice Chairperson are elected by the Committee from among its members.
Wednesday, September 28, 2016, 2:30 p.m. EDT.
Cohen Building, Room 3321, 330 Independence Ave. SW., Washington, DC 20237.
Notice of Meeting of the Broadcasting Board of Governors.
The Broadcasting Board of Governors (Board) will be meeting at the time and location listed above. The Board will vote on a consent agenda consisting of the minutes of its June 23, 2016 meeting, a resolution honoring the 10th anniversary of Voice of America's (VOA) Deewa Service, a resolution honoring the 20th anniversary of VOA's broadcasts in Afan Oromo and Tigrigna, a resolution honoring the 20th anniversary of VOA's broadcasts in Kirundi and Kinyarwanda, and a resolution honoring the 20th anniversary of Radio Free Asia. The Board will receive a report from the Chief Executive Officer and Director of BBG.
This meeting will be available for public observation via streamed webcast, both live and on-demand, on the agency's public Web site at
The public may also attend this meeting in person at the address listed above as seating capacity permits. Members of the public seeking to attend the meeting in person must register at
Persons interested in obtaining more information should contact Oanh Tran at (202) 203-4545.
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 a planning meeting of the Maryland Advisory Committee to the Commission will convene by conference call at 12:30 p.m. (EST) on the following dates: Friday, October 21, 2016; Friday, November 18, 2016; Friday, December 16, 2016; Friday, January 27, 2017; Friday, February 17, 2017 and Friday, March 17, 2017. The purpose of each planning meeting is to discuss project planning for the Committee's civil rights review.
The following dates: Friday, October 21, 2016; Friday, November 18, 2016; Friday, December 16, 2016; Friday, January, 27, 2017; Friday, February 17, 2017 and Friday, March 17, 2017.
Ivy L. Davis, at
Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1-800-946-0719 and conference call ID: 5397395. 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 meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the
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: 1-800-946-0719 and conference call ID: 5397395.
Members of the public are invited to 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
Bureau of the Census, Department of Commerce.
Notice of public virtual meeting.
The Bureau of the Census (Census Bureau) is giving notice of a virtual meeting of the Census Scientific Advisory Committee (CSAC). The Committee will address the results of the 2015 National Content Test on race and ethnicity. The CSAC will meet virtually on Thursday, October 6, 2016. Last minute changes to the schedule are possible, which could prevent giving advance public notice of schedule adjustments. Please visit the Census Advisory Committees Web site for the most current meeting agenda at:
October 6, 2016. The virtual meeting will begin at approximately 2:00 p.m. ET and end at approximately 4:00 p.m. ET.
The meeting will be held via WebEx at the following URL link:
Tara Dunlop Jackson, Advisory Committee Branch Chief, Customer Liaison and Marketing Services Office,
Members of the CSAC are appointed by the Director, U.S. Census Bureau. The Committee provides scientific and technical expertise, as appropriate, to address Census Bureau program needs and objectives. The Committee was established in accordance with the Federal Advisory Committee Act (Title 5, United States Code, Appendix 2, Section 10).
All meetings are open to the public. A brief period will be set aside at the meeting for public comment on October 6. Individuals with extensive questions or statements must submit them in writing to:
Bureau of the Census, Department of Commerce.
Notice of public virtual meeting.
The Bureau of the Census (Census Bureau) is giving notice of a virtual meeting of the National Advisory Committee (NAC). The Committee will address the results of the 2015 National Content Test on race and ethnicity. The NAC will meet virtually on Monday, October 3, 2016. Last minute changes to the schedule are possible, which could prevent giving advance public notice of schedule adjustments. Please visit the Census Advisory Committees Web site for the most current meeting agenda at:
October 3, 2016. The virtual meeting will begin at approximately 1:00 p.m. ET and end at approximately 3:00 p.m. ET.
The meeting will be held via WebEx at the following URL link:
Tara Dunlop Jackson, Advisory Committee Branch Chief, Customer Liaison and Marketing Services Office,
The NAC was established in March 2012 and operates in accordance with the Federal Advisory Committee Act (Title 5, United States Code, Appendix 2, Section 10). NAC members are appointed by the Director, U.S. Census Bureau, and consider topics such as hard-to-reach populations, race and ethnicity, language, aging populations, American Indian and Alaska Native tribal considerations, new immigrant populations, populations affected by natural disasters, highly mobile and
All meetings are open to the public. A brief period will be set aside at the meeting for public comment on October 3. Individuals with extensive questions or statements must submit them in writing to:
On July 26, 2016, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board docketed an application submitted by the Eastern Distribution Center, Inc., grantee of FTZ 24, requesting subzone status subject to the existing activation limit of FTZ 24, on behalf of Michaels Stores Procurement Company, Inc., in Hazleton, Pennsylvania.
The application was processed in accordance with the FTZ Act and Regulations, including notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce
The Department of Commerce (the Department) preliminarily determines that imports of Certain Carbon and Alloy Steel Cut-to-Length Plate (CTL plate) from Brazil, South Africa, and the Republic of Turkey (Turkey) are being, or are likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) for these investigations is April 1, 2015, through March 31, 2016. The estimated margins of sales at LTFV are shown in the “Preliminary Determinations” section of this notice. Interested parties are invited to comment on these preliminary determinations.
Effective September 22, 2016.
Mark Kennedy at (202) 482-7883 (Brazil); Julia Hancock or Susan Pulongbarit at (202) 482-1394 or (202) 482-4031, respectively (South Africa); or Dmitry Vladimirov at (202) 482-0665 (Turkey), AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.
The Department published the notice of initiation of these investigations on May 5, 2016.
The products covered by these investigations are CTL plate. For a full description of the scope of these investigations,
In accordance with the
The Department is conducting these investigations in accordance with section 731 of the Tariff Act of 1930, as amended (the Act). Pursuant to section 776(a) of the Act, the Department preliminarily relied upon facts otherwise available to assign an estimated weighted-average dumping margin to the mandatory respondents in these three investigations, because none of the respondents submitted a response to the Department's questionnaire.
On July 26, 2016, the petitioners
Section 733(e)(1) of the Act provides that the Department will preliminarily determine that critical circumstances exist in a LTFV investigation if there is a reasonable basis to believe or suspect that: (A) There is a history of dumping and material injury by reason of dumped imports in the United States or elsewhere of the subject merchandise, or the person by whom, or for whose account, the merchandise was imported knew or should have known that the exporter was selling the subject merchandise at less than its fair value and that there was likely to be material injury by reason of such sales; and (B) there have been massive imports of the subject merchandise over a relatively short period. On September 7, 2016, we published our preliminarily determination that critical circumstances exist with respect to imports of CTL plate exported from Brazil and Turkey.
Section 733(d)(1)(A)(ii) of the Act provides that in the preliminary determination the Department shall determine an estimated “all-others” rate for all exporters and producers not individually investigated, in accordance with section 735(c)(5) of the Act. Section 735(c)(5)(A) of the Act states that generally the estimated rate for all-others shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
With respect to Brazil, in the Petitions,
With respect to South Africa, in the Petitions,
With respect to Turkey, in the Petitions,
The Department preliminarily determines that the following weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of CTL plate from Brazil, South Africa and Turkey, as described in the “Scope of the Investigations” in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Because the mandatory respondents in these investigations did not provide the information requested, the Department will not conduct verifications.
Normally, the Department discloses to interested parties the calculations performed in connection with a preliminary determination within five days after public announcement of the preliminary determination in accordance with 19 CFR 351.224(b). Because the Department preliminarily applied AFA to each of the mandatory respondents in these investigations, in accordance with section 776 of the Act, there are no calculations to disclose.
Interested parties are invited to comment on these preliminary determinations no later than 30 days after the date of publication of these preliminary determinations.
In its Preliminary Scope Decision Memorandum, the Department established separate deadlines for interested parties to provide comments on scope issues.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. All documents must be filed electronically using ACCESS. An electronically-filed request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice.
In accordance with section 733(f) of the Act, we are notifying the U.S. International Trade Commission (ITC) of our affirmative preliminary determinations of sales at LTFV. If our final determinations are affirmative, the ITC will determine before the later of 120 days after the date of these preliminary determinations or 45 days after our final determinations whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
These determinations are issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The products covered by these investigations are certain carbon and alloy steel hot-rolled or forged flat plate products not in coils, whether or not painted, varnished, or coated with plastics or other non-metallic substances (cut-to-length plate). Subject merchandise includes plate that is produced by being cut-to-length from coils or from other discrete length plate and plate that is rolled or forged into a discrete length. The products covered include (1) Universal
For purposes of the width and thickness requirements referenced above, the following rules apply:
(1) Except where otherwise stated where the nominal and actual thickness or width measurements vary, a product from a given subject country is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the product is already covered by an order existing on that specific country (
(2) where the width and thickness vary for a specific product (
Steel products included in the scope of these investigations are products in which: (1) Iron predominates, by weight, over each of the other contained elements; and (2) the carbon content is 2 percent or less by weight.
Subject merchandise includes cut-to-length plate that has been further processed in the subject country or a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, beveling, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of these investigations if performed in the country of manufacture of the cut-to-length plate.
All products that meet the written physical description, are within the scope of these investigations unless specifically excluded or covered by the scope of an existing order. The following products are outside of, and/or specifically excluded from, the scope of these investigations:
(1) Products clad, plated, or coated with metal, whether or not painted, varnished or coated with plastic or other non-metallic substances;
(2) military grade armor plate certified to one of the following specifications or to a specification that references and incorporates one of the following specifications:
• MIL-A-12560,
• MIL-DTL-12560H,
• MIL-DTL-12560J,
• MIL-DTL-12560K,
• MIL-DTL-32332,
• MIL-A-46100D,
• MIL-DTL-46100-E,
• MIL-46177C,
• MIL-S-16216K Grade HY80,
• MIL-S-16216K Grade HY100,
• MIL-S-24645A HSLA-80;
• MIL-S-24645A HSLA-100,
• T9074-BD-GIB-010/0300 Grade HY80,
• T9074-BD-GIB-010/0300 Grade HY100,
• T9074-BD-GIB-010/0300 Grade HSLA80,
• T9074-BD-GIB-010/0300 Grade HSLA100, and
• T9074-BD-GIB-010/0300 Mod. Grade HSLA115, except that any cut-to-length plate certified to one of the above specifications, or to a military grade armor specification that references and incorporates one of the above specifications, will not be excluded from the scope if it is also dual- or multiple-certified to any other non-armor specification that otherwise would fall within the scope of this order;
(3) stainless steel plate, containing 10.5 percent or more of chromium by weight and not more than 1.2 percent of carbon by weight;
(4) CTL plate meeting the requirements of ASTM A-829, Grade E 4340 that are over 305 mm in actual thickness;
(5) Alloy forged and rolled CTL plate greater than or equal to 152.4 mm in actual thickness meeting each of the following requirements:
(a) Electric furnace melted, ladle refined & vacuum degassed and having a chemical composition (expressed in weight percentages):
• Carbon 0.23-0.28,
• Silicon 0.05-0.20,
• Manganese 1.20-1.60,
• Nickel not greater than 1.0,
• Sulfur not greater than 0.007,
• Phosphorus not greater than 0.020,
• Chromium 1.0-2.5,
• Molybdenum 0.35-0.80,
• Boron 0.002-0.004,
• Oxygen not greater than 20 ppm,
• Hydrogen not greater than 2 ppm, and
• Nitrogen not greater than 60 ppm;
(b) With a Brinell hardness measured in all parts of the product including mid thickness falling within one of the following ranges:
(i) 270-300 HBW,
(ii) 290-320 HBW, or
(iii) 320-350HBW;
(c) Having cleanliness in accordance with ASTM E45 method A (Thin and Heavy): A not exceeding 1.5, B not exceeding 1.0, C not exceeding 0.5, D not exceeding 1.5; and
(d) Conforming to ASTM A578-S9 ultrasonic testing requirements with acceptance criteria 2 mm flat bottom hole;
(6) Alloy forged and rolled steel CTL plate over 407 mm in actual thickness and meeting the following requirements:
(a) Made from Electric Arc Furnace melted, Ladle refined & vacuum degassed, alloy steel with the following chemical composition (expressed in weight percentages):
• Carbon 0.23-0.28,
• Silicon 0.05-0.15,
• Manganese 1.20-1.50,
• Nickel not greater than 0.4,
• Sulfur not greater than 0.010,
• Phosphorus not greater than 0.020,
• Chromium 1.20-1.50,
• Molybdenum 0.35-0.55,
• Boron 0.002-0.004,
• Oxygen not greater than 20 ppm,
• Hydrogen not greater than 2 ppm, and
• Nitrogen not greater than 60 ppm;
(b) Having cleanliness in accordance with ASTM E45 method A (Thin and Heavy): A not exceeding 1.5, B not exceeding 1.5, C not exceeding 1.0, D not exceeding 1.5;
(c) Having the following mechanical properties:
(i) With a Brinell hardness not more than 237 HBW measured in all parts of the product including mid thickness; and having a Yield Strength of 75ksi min and UTS 95ksi or more, Elongation of 18% or more and Reduction of area 35% or more; having charpy V at −75 degrees F in the longitudinal direction equal or greater than 15 ft. lbs (single value) and equal or greater than 20 ft. lbs (average of 3 specimens) and conforming to the requirements of NACE MR01-75; or
(ii) With a Brinell hardness not less than 240 HBW measured in all parts of the product including mid thickness; and having a Yield Strength of 90 ksi min and UTS 110 ksi or more, Elongation of 15% or more and Reduction of area 30% or more; having charpy V at −40 degrees F in the longitudinal direction equal or greater than 21 ft. lbs (single value) and equal or greater than 31 ft. lbs (average of 3 specimens);
(d) Conforming to ASTM A578-S9 ultrasonic testing requirements with acceptance criteria 3.2 mm flat bottom hole; and
(e) Conforming to magnetic particle inspection in accordance with AMS 2301;
(7) Alloy forged and rolled steel CTL plate over 407 mm in actual thickness and meeting the following requirements:
(a) Made from Electric Arc Furnace melted, ladle refined & vacuum degassed, alloy steel with the following chemical composition (expressed in weight percentages):
• Carbon 0.25-0.30,
• Silicon not greater than 0.25,
• Manganese not greater than 0.50,
• Nickel 3.0-3.5,
• Sulfur not greater than 0.010,
• Phosphorus not greater than 0.020,
• Chromium 1.0-1.5,
• Molybdenum 0.6-0.9,
• Vanadium 0.08 to 0.12
• Boron 0.002-0.004,
• Oxygen not greater than 20 ppm,
• Hydrogen not greater than 2 ppm, and
• Nitrogen not greater than 60 ppm.
(b) Having cleanliness in accordance with ASTM E45 method A (Thin and Heavy): A not exceeding 1.0(t) and 0.5(h), B not exceeding 1.5(t) and 1.0(h), C not exceeding 1.0(t) and 0.5(h), and D not exceeding 1.5(t) and 1.0(h);
(c) Having the following mechanical properties: A Brinell hardness not less than 350 HBW measured in all parts of the product including mid thickness; and having a Yield Strength of 145ksi or more and UTS 160ksi or more, Elongation of 15% or more and Reduction of area 35% or more; having charpy V at −40 degrees F in the transverse direction equal or greater than 20 ft. lbs
(d) Conforming to ASTM A578-S9 ultrasonic testing requirements with acceptance criteria 3.2 mm flat bottom hole; and
(e) Conforming to magnetic particle inspection in accordance with AMS 2301.
The products subject to these investigations are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7225.40.1110, 7225.40.1180, 7225.40.3005, 7225.40.3050, 7226.20.0000, and 7226.91.5000.
The products subject to these investigations may also enter under the following HTSUS item numbers: 7208.40.6060, 7208.53.0000, 7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.19.1500, 7211.19.2000, 7211.19.4500, 7211.19.6000, 7211.19.7590, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7214.10.0000, 7214.30.0010, 7214.30.0080, 7214.91.0015, 7214.91.0060, 7214.91.0090, 7225.11.0000, 7225.19.0000, 7225.40.5110, 7225.40.5130, 7225.40.5160, 7225.40.7000, 7225.99.0010, 7225.99.0090, 7226.11.1000, 7226.11.9060, 7226.19.1000, 7226.19.9000, 7226.91.0500, 7226.91.1530, 7226.91.1560, 7226.91.2530, 7226.91.2560, 7226.91.7000, 7226.91.8000, and 7226.99.0180.
The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of these investigations is dispositive.
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 (the “ITC”) that revocation of the antidumping duty (“AD”) orders on narrow woven ribbons with woven selvedge (“NWRs”) from the People's Republic of China (“PRC”) and Taiwan and the countervailing duty (“CVD”) order on NWRs from the PRC would likely lead to a continuation or recurrence of dumping and countervailable subsidies and material injury to an industry in the United States, the Department is publishing this notice of continuation of the AD orders and the CVD order.
Effective September 22, 2016.
Robert Galantucci (202-482-2923) or Toby Vandall (202-482-1664), AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On August 3, 2015, the Department initiated
The merchandise covered by the scope of the orders is narrow woven ribbons with woven selvedge, in any length, but with a width (measured at the narrowest span of the ribbon) less than or equal to 12 centimeters, composed of, in whole or in part, man-made fibers (whether artificial or synthetic, including but not limited to nylon, polyester, rayon, polypropylene, and polyethylene teraphthalate), metal threads and/or metalized yarns, or any combination thereof. Narrow woven ribbons subject to the orders may:
• Also include natural or other non-man-made fibers;
• be of any color, style, pattern, or weave construction, including but not limited to single-faced satin, double-faced satin, grosgrain, sheer, taffeta, twill, jacquard, or a combination of two or more colors, styles, patterns, and/or weave constructions;
• have been subjected to, or composed of materials that have been subjected to, various treatments, including but not limited to dyeing, printing, foil stamping, embossing, flocking, coating, and/or sizing;
• have embellishments, including but not limited to appliqué, fringes, embroidery, buttons, glitter, sequins, laminates, and/or adhesive backing;
• have wire and/or monofilament in, on, or along the longitudinal edges of the ribbon;
• have ends of any shape or dimension, including but not limited to straight ends that are perpendicular to the longitudinal edges of the ribbon, tapered ends, flared ends or shaped ends, and the ends of such woven ribbons may or may not be hemmed;
• have longitudinal edges that are straight or of any shape, and the longitudinal edges of such woven ribbon may or may not be parallel to each other;
• consist of such ribbons affixed to like ribbon and/or cut-edge woven ribbon, a configuration also known as an “ornamental trimming;”
• be wound on spools; attached to a card; hanked (
• be included within a kit or set such as when packaged with other products, including but not limited to gift bags, gift boxes and/or other types of ribbon.
Narrow woven ribbons with woven selvedge subject to the orders include all narrow woven fabrics, tapes, and labels that fall within this written description of the scope of the AD orders. Excluded from the scope of the orders are the following:
(1) Formed bows composed of narrow woven ribbons with woven selvedge;
(2) “pull-bows” (
(3) narrow woven ribbons comprised at least 20 percent by weight of elastomeric yarn (
(4) narrow woven ribbons of a kind used for the manufacture of typewriter or printer ribbons;
(5) narrow woven labels and apparel tapes, cut-to-length or cut-to-shape, having a length (when measured across the longest edge-to-edge span) not exceeding eight centimeters;
(6) narrow woven ribbons with woven selvedge attached to and forming the handle of a gift bag;
(7) cut-edge narrow woven ribbons formed by cutting broad woven fabric into strips of ribbon, with or without treatments to prevent the longitudinal edges of the ribbon from fraying (such as by merrowing, lamination, sono-bonding, fusing, gumming or waxing), and with or without wire running lengthwise along the longitudinal edges of the ribbon;
(8) narrow woven ribbons comprised at least 85 percent by weight of threads having a denier of 225 or higher;
(9) narrow woven ribbons constructed from pile fabrics (
(10) narrow woven ribbon affixed (including by tying) as a decorative detail to non-subject merchandise, such as a gift bag, gift box, gift tin, greeting card or plush toy, or affixed (including by tying) as a decorative detail to packaging containing non-subject merchandise;
(11) narrow woven ribbon that is (a) affixed to non-subject merchandise as a working component of such non-subject merchandise, such as where narrow woven ribbon comprises an apparel trimming, book marker, bag cinch, or part of an identity card holder, or (b) affixed (including by tying) to non-subject merchandise as a working component that holds or packages such non-subject merchandise or attaches packaging or labeling to such non-subject merchandise, such as a “belly band” around a pair of pajamas, a pair of socks or a blanket;
(12) narrow woven ribbon(s) comprising a belt attached to and imported with an item of wearing apparel, whether or not such belt is removable from such item of wearing apparel; and
(13) narrow woven ribbon(s) included with non-subject merchandise in kits, such as a holiday ornament craft kit or a scrapbook kit, in which the individual lengths of narrow woven ribbon(s) included in the kit are each no greater than eight inches, the aggregate amount of narrow woven ribbon(s) included in the kit does not exceed 48 linear inches, none of the narrow woven ribbon(s) included in the kit is on a spool, and the narrow woven ribbon(s) is only one of multiple items included in the kit.
The merchandise subject to the orders is classifiable under the HTSUS statistical categories 5806.32.1020; 5806.32.1030; 5806.32.1050 and 5806.32.1060. Subject merchandise also may enter under subheadings 5806.31.00; 5806.32.20; 5806.39.20; 5806.39.30; 5808.90.00; 5810.91.00; 5810.99.90; 5903.90.10; 5903.90.25; 5907.00.60; and 5907.00.80 and under statistical categories 5806.32.1080; 5810.92.9080; 5903.90.3090; and 6307.90.9889. The HTSUS statistical categories and subheadings are provided for convenience and customs purposes; however, the written description of the merchandise covered by the orders is dispositive.
As a result of the determinations by the Department and the ITC that revocation of the AD and CVD orders would likely lead to continuation or recurrence of dumping and countervailable subsidies 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 orders on NWRs from the PRC and Taiwan and the CVD order on NWRs from the PRC. United States Customs and Border Protection will continue to collect AD and CVD 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 orders will be the date of publication in the
These five-year sunset reviews 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.
The Department of Commerce is rescinding the administrative review of the antidumping duty order on certain polyester staple fiber from the Republic of Korea, based on the timely withdrawal of requests for review. The period of review is May 1, 2015, through April 30, 2016.
Sergio Balbontin at (202) 482-6478, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.
On May 2, 2016, the Department of Commerce (the Department) published a notice of opportunity to request an administrative review of the antidumping duty order on certain polyester staple fiber (PSF) from the Republic of Korea (Korea) for the period of review (POR) of May 1, 2015, through
Pursuant to 19 CFR 351.213(d)(l), the Department will rescind an administrative review, in whole or in part, if the party, or parties, that requested a review withdraw the request/s within 90 days of the publication date of the notice of initiation of the requested review. As noted above, the petitioner withdrew its request for review of Huvis within 90 days of the publication date of the notice of initiation. In addition, Huvis also timely withdrew its request for an administrative review. No other parties requested an administrative review of the antidumping duty order on certain polyester staple fiber from the Republic of Korea. Therefore, in response to the timely withdrawal of requests for review and in accordance with 19 CFR 351.213(d)(l), the Department is rescinding this review.
The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of PSF from Korea during the POR. Antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption in accordance with 19 CFR 351.212(c)(l)(i). The Department intends to issue appropriate assessment instructions to CBP 15 days after publication of this notice in the
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under an APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(l) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Office of the Secretary of Defense, DoD.
Notice to add a System of Records.
Pursuant to the Privacy Act of 1974, 5 U.S.C. 552a, and Office of Management and Budget (OMB) Circular No. A-130, notice is hereby given that the Office of the Secretary of Defense proposes to add a new system of records, DSCA 07, entitled “Security Assistance Network (SAN).” The SAN is the international security cooperation (SC) database and communications network that provides the Security Cooperation Offices (SCOs) and others in the SC community access to SC financial and logistics management systems, information via various bulletin boards, and a library system for large files. The SAN provides the primary interface for the input and output of data from all military departments, SCOs, and International Military Student Offices (IMSOs). Most importantly, the SAN is where the SCO training manager obtains data used for the Security Cooperation Training Management System (SC-TMS). All SCOs and IMSOs must use the SAN and its components to perform their assigned SC training management functions.
Comments will be accepted on or before October 24, 2016. This proposed action will be effective the day following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
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Mrs. Luz D. Ortiz, Chief, Records, Privacy and Declassification Division (RPD2), 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0478.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy
Security Assistance Network (SAN)
Institute for Defense Analysis (IDA), 4850 Mark Center Drive, Alexandria, VA 22311-1882.
DoD civilian, military, contractor personnel (collectively, “U.S. personnel”), and individuals with dual citizenship with the U.S., selected to attend DoD security cooperation training (collectively, “students”).
Security Cooperation Training Management System (SC-TMS): U.S. Personnel Data: Name, organization, office telephone and fax numbers, point of contact function, and military rank.
Student Data: Full name and alias, full face photograph, gender, citizenship, nationality, date and place of birth, physical descriptions, email addresses, work and home addresses, work and home telephone numbers, marital status, military rank and date of rank, branch of military service, worksheet and student control numbers, clearance, passport and visa information, health information, lodging and travel information, emergency contact(s), language capabilities, educational and employment information, academic evaluation, religious affiliation, personal preferences (
U.S. Personnel Data: Name, DoD Identification Number (DoD ID Number), military rank, position number, source and title, funding source, billet category, headquarters, current service, organization, country, state, rotate date, minimal training, and level of training.
U.S. Personnel Data: Full name, personal or work email address, mailing address, telephone and fax number, major command and work mailing address, name of organization, office symbol/code, job title, job function, grade/rank, job series, military specialty, start date, total months in International Affairs related work, billet information, current certification level, highest education completed, and field of study. Supervisor information that consists of the first and last name, work email address, organization, office symbol, work phone, and fax number.
10 U.S.C. 134, Under Secretary of Defense for Policy; 22 U.S.C. 39, Arms Export Control Act, Chapters 32 and Chapter 39; DoD Directive (DoDD) 5105.65, Defense Security Cooperation Agency (DSCA); DoDD 5101.1, DoD Executive Agent; DoDD 5132.03, DoD Policy and Responsibilities Relating to Security Cooperation; Army Regulation 12-15, Secretary of the Navy Instruction 4950.4B/Air Force Instruction 16-105, Joint Security Cooperation Education and Training; and DSCA Manual 5105.38-M, Security Assistance Management Manual (SAMM), Chapter 10, International Training.
The SAN is a network used to exchange Security Cooperation personnel management, training, and budget information between overseas Security Cooperation Offices, Geographical Combatant Commands, Military Departments, Defense Security Cooperation Agency (DSCA), Defense Finance and Accounting Services (DFAS), DoD Schoolhouses, Regional Centers, and international host nation organizations.
The SAN hosts the Security Cooperation Training Management System (SC-TMS) which are tools used by the Security Cooperation community to manage student training data, including the Security Cooperation Workforce Database (SCWD) and International Affairs Certification Database (IACD) which tracks and provides the status of training for the Security Cooperation workforce certification levels.
In addition, the SAN hosts the Security Assistance Automated Resource Management Suite and the Security Cooperation International Resource Management System, both of which are budget programs that do not collect personally identifiable information (PII).
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained herein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows to:
Law Enforcement Routine Use: If a system of records maintained by a DoD Component to carry out its functions indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or by regulation, rule, or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the agency concerned, whether federal, state, local, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.
Congressional Inquiries Disclosure Routine Use: Disclosure from a system of records maintained by a DoD Component may be made to a congressional office from the record of an individual in response to an inquiry from the congressional office made at the request of that individual.
Disclosures Required by International Agreements Routine Use: A record from a system of records maintained by a DoD Component may be disclosed to foreign law enforcement, security, investigatory, or administrative authorities to comply with requirements imposed by, or to claim rights conferred in, international agreements and arrangements including those regulating the stationing and status in foreign countries of DoD military and civilian personnel.
Disclosure to the Department of Justice for Litigation Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use to any component of the Department of Justice
Disclosure of Information to the National Archives and Records Administration Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use to the National Archives and Records Administration for the purpose of records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.
Data Breach Remediation Purposes Routine Use: A record from a system of records maintained by a Component may be disclosed to appropriate agencies, entities, and persons when (1) The Component suspects or has confirmed that the security or confidentiality of the information in the system of records has been compromised; (2) the Component 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 this system or other systems or programs (whether maintained by the Component or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Components efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
Paper records and electronic storage media.
Individual's name, DoD Identification Number, Worksheet Control Number, or Student Control Number.
Records are maintained in a controlled facility. Physical entry is restricted by the use of locks, and is accessible only to authorized personnel. Access to records is limited to person(s) responsible for servicing the record in performance of their official duties and who are properly screened and cleared for need-to-know. Access to computerized data is restricted by centralized access control to include the use of CAC, passwords, file permissions, and audit logs.
Destroy five years after completion of a specific training program, after period covered by account, from last activity or when superseded or obsolete, whichever is sooner.
SAN System Administrator, Defense Institute of Security Management, 2475 K. Street, Bldg. 52, Wright-Patterson AFB, OH 45433-7641.
Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to Defense Institute of Security Management, ATTN: Director of International Studies or Director of Research, 2475 K Street, Wright-Patterson AFB, OH 45433-7641.
Signed, written requests should include the full name, DoD ID Number (if applicable), current address and telephone number, and the name and number of this system of records notice.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).”
If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”
Individuals seeking access to records about themselves contained in this system should address written inquiries to the Office of the Secretary of Defense/Joint Staff, Freedom of Information Act Requester Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
Signed, written requests should include the full name, DoD ID number (if applicable), current address and telephone number, and the name and number of this system of records notice.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed outside the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).”
If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”
The OSD rules for accessing records, for contesting contents and appealing initial agency determinations are published in OSD Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.
Individual or service organization.
None.
Department of Defense.
Notice.
The Department of Defense is publishing this notice to announce an open meeting of the Strategic Environmental Research and Development Program, Scientific Advisory Board (SAB). This meeting will be open to the public.
Wednesday, October 19, 2016, from 8:30 a.m. to 3:50 p.m.
901 N. Stuart Street, Suite 200, Arlington, VA 22203.
Dr. Herb Nelson, SERDP Office, 4800 Mark Center Drive, Suite 17D08, Alexandria, VA 22350-3605; or by telephone at (571) 372-6565.
This 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. This notice is published in accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463).
Pursuant to 5 U.S.C. 552b and 41 CFR 102-3.140 through 102-3.165, and the availability of space, this meeting is open to the public. Seating is on a first-come basis.
The purpose of the October 19, 2016 meeting is to review new start research
Pursuant to 41 CFR 102-3.140, and section 10(a)(3) of the Federal Advisory Committee Act of 1972, the public or interested organizations may submit written statements to the Strategic Environmental Research and Development Program, Scientific Advisory Board. Written statements may be submitted to the committee at any time or in response to an approved meeting agenda.
All written statements shall be submitted to the Designated Federal Officer (DFO) for the Strategic Environmental Research and Development Program, Scientific Advisory Board. The DFO will ensure that the written statements are provided to the membership for their consideration. Contact information for the DFO can be obtained from the GSA's FACA Database at
Time is allotted at the close of each meeting day for the public to make comments. Oral comments are limited to 5 minutes per person.
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 October 24, 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:
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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 Defense.
Notice.
The Department of Defense is publishing this notice to announce an open meeting of the Strategic Environmental Research and Development Program, Scientific Advisory Board (SAB). This meeting will be open to the public.
Tuesday, October 18, 2016, from 8:30 a.m. to 4:35 p.m.
901 N. Stuart Street Suite 200, Arlington, VA 22203.
Dr. Herb Nelson, SERDP Office, 4800 Mark Center Drive, Suite 17D08, Alexandria, VA 22350-3605; or by telephone at (571) 372-6565.
This 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. This notice is published in accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463).
Pursuant to 5 U.S.C. 552b and 41 CFR 102-3.140 through 102-3.165, and the availability of space, this meeting is open to the public. Seating is on a first-come basis.
The purpose of the October 18, 2016 meeting is to review new start research and development projects requesting Strategic Environmental Research and Development Program funds as required by the SERDP Statute, U.S. Code—Title 10, Subtitle A, Part IV, Chapter 172, § 2904. The full agenda follows:
Pursuant to 41 CFR 102-3.140, and section 10(a)(3) of the Federal Advisory Committee Act of 1972, the public or interested organizations may submit written statements to the Strategic Environmental Research and Development Program, Scientific Advisory Board. Written statements may be submitted to the committee at any time or in response to an approved meeting agenda.
All written statements shall be submitted to the Designated Federal Officer (DFO) for the Strategic Environmental Research and Development Program, Scientific Advisory Board. The DFO will ensure that the written statements are provided to the membership for their consideration. Contact information for the DFO can be obtained from the GSA's FACA Database at
Office of Fossil Energy, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Methane Hydrate Advisory Committee. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that notice of these meetings be announced in the
Wednesday, October 19, 2016; 8:45 a.m. to 9:30 a.m. (EDT)—Registration; 9:30 a.m. to 4:45 p.m. (EDT)—Meeting.
U.S. Department of Energy, Forrestal Building, Room 3F-071, 1000 Independence Ave. SW., Washington, DC 20585.
Lou Capitanio, U.S. Department of Energy, Office of Oil and Natural Gas, 1000 Independence Avenue SW., Washington, DC 20585.
Office of Science, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the DOE/NSF Nuclear Science Advisory Committee (NSAC). The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Friday, October 28, 2016; 8:30 a.m.-4:00 p.m.
Hilton Washington DC/North Gaithersburg, 620 Perry Parkway, Gaithersburg, Maryland 20877, (301) 977-8900.
Brenda L. May, U.S. Department of Energy; SC-26/Germantown Building, 1000 Independence Avenue SW., Washington, DC 20585-1290; Telephone: (301) 903-0536 or email:
The most current information concerning this meeting can be found on the Web site:
The NSAC Meeting will be broadcast live on the Internet. You may find out how to access this broadcast by going to the following site prior to the start of the meeting. A video record of the meeting including the presentations that are made will be archived at this site after the meeting ends:
The minutes of the meeting will be available for review on the U.S. Department of Energy's Office of Nuclear Physics' Web site at:
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Oak Ridge Reservation. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, October 12, 2016; 6:00 p.m.
Department of Energy Information Center, Office of Science and Technical Information, 1 Science.gov Way, Oak Ridge, Tennessee 37831.
Melyssa P. Noe, Alternate Deputy Designated Federal Officer, U.S. Department of Energy, Oak Ridge Office of Environmental Management, P.O. Box 2001, EM-942, Oak Ridge, TN 37831. Phone (865) 241-3315; Fax (865) 241-6932; Email:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following public utility holding company 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:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on September 16, 2016, pursuant to Rule 206 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206, section 343.2 of the Commission's Rules Applicable to Oil Pipeline Proceedings, 18 CFR 343.2 (2016), and sections 1, 6, 8, 9, 13, 15, and 16 of the Interstate Commerce Act (ICA), 49 U.S.C. app. §§ 1, 6, 8, 9, 13, 15, & 16 (1988), Aircraft Service International Group, Inc., American Airlines, Inc., Delta Air Lines, Inc., Hookers Point Fuel Facilities LLC, Southwest Airlines Co., United Aviation Fuels Corporation, and United Parcel Service, Inc. (Complainants) filed a formal complaint against Central Florida Pipeline LLC (CFPL) and Kinder Morgan Liquid Terminals LLC (KMLT) (Respondents) alleging that CFPL has unlawfully provided for physical transportation of jet fuel in interstate commerce on its pipeline without filing a tariff with the Commission in violation of ICA § 6(1) and KMLT has unlawfully provided untariffed FERC jurisdictional break out tankage service at its liquids terminal in Tampa, Florida (KMLT Tampa Terminal) in violation of ICA § 6(1). Complainants further allege that the rates charged by CFPL for the transportation of jet fuel from Tampa, Florida to the Orlando Terminal and the ASIG Terminal at Orlando International Airport in Orlando, Florida are not just and reasonable, as more fully explained in the complaint.
Complainants certify that copies of the complaint were served upon (1) the corporate representative identified in CFPL's March 1, 2016 letter to shippers establishing the currently effective tariff rates on CFPL, Meredith West, as CFPL has not designated a person on the Commission's Corporate Officials List as representing CFPL in this action, and (2) Mark Evans and Jeff Hulbert, representatives identified on Kinder Morgan's Web site as responsible for Central Florida Pipeline and Southeast Terminals and Products Pipelines Tariffs, respectively.
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
Environmental Protection Agency (EPA).
Notice of availability and public comment period.
The Environmental Protection Agency (EPA) is providing notice that three chapters of the current EPA Air Pollution Control Cost Manual (Control Cost Manual) have been updated. The EPA is requesting comment on Section 1, Chapter 2, “Cost Estimation: Concepts and Methodology”; Section 3.1, Chapter 1, “Refrigerated Condensers”; and Section 3.2, Chapter 2, “Incinerators/Oxidizers.”
Comments must be received on or before December 21, 2016. Please refer to
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2015-0341, to the
Larry Sorrels, Health and Environmental Impacts Division, C439-02, Environmental Protection Agency, 109 T.W. Alexander Drive, Research Triangle Park, NC 27709; telephone number: (919) 541-5041; fax number: (919) 541-0839; email address:
The EPA is requesting comment on the specific Control Cost Manual chapters included in this NODA.
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• Identify the notification 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/data 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.
The EPA is requesting comment on three updated chapters of the EPA Air Pollution Control Cost Manual. The Control Cost Manual contains individual chapters on control measures, including data and equations to aid users in estimating capital costs for installation and annual costs for operation and maintenance of these measures. The Control Cost Manual is used by the EPA for estimating the impacts of rulemakings, and serves as a basis for sources to estimate costs of controls that are Best Available Control Technology under the New Source Review Program, and Best Available Retrofit Technology under the Regional Haze Program and for other programs.
The three updated Control Cost Manual chapters are: Section 1, Chapter 2, Cost Estimation: Concepts and Methodology; Section 3.1, Chapter 1, Refrigerated Condensers; and Section 3.2, Chapter 2, Incinerators/Oxidizers. Section 3.2, Chapter 2, ”Incinerators” will now include oxidizers, for this type of control device is commonly used for destruction of volatile organic compounds (VOC) emissions, which is the primary function of incinerators. These three revised Control Cost Manual chapters can be found in the docket for the Control Cost Manual update (Docket ID No. EPA-HQ-OAR-2015-0341). The current Control Cost Manual version (sixth edition) is available at
To help focus review of the three chapters, Cost Estimation: Concepts and Methodology (Section 1, Chapter 2,); Refrigerated Condensers (Section 3.1, Chapter 1); and Incinerators/Oxidizers (Section 3.2, Chapter 2), we offer the following list of questions that the EPA is particularly interested in addressing in the updated chapters. Commenters are welcome to address any aspects of these chapters. Please provide supporting data for responses to these questions and other aspects of the chapters.
(1) Is the cost methodology included in this chapter consistent with best practices for cost estimation of pollution control equipment installation, operation and maintenance?
(2) Is the use of the equivalent uniform annual cost method appropriate for estimating costs for pollution control devices, particularly end-of-pipe controls?
(3) Are the cost items included in the definition of capital cost or total capital investment valid? Are the cost items included in the definition of annual costs valid?
(1) What is a reasonable estimate of equipment life (defined as design or operational life) for this control measure?
(2) Is the description of refrigerated condensers complete, up to date, and accurate, particularly with regard to control of VOC?
(3) Are the cost correlations, factors, and equations for refrigerated condensers accurate? If not, how should they be revised?
(4) Are the estimates of VOC destruction efficiency for refrigerated condensers accurate?
(5) Is the discussion on the effect of fouling on refrigerated condensers accurate?
(1) What is a reasonable estimate of equipment life (defined as design or operational life) for this control measure?
(2) Is the description of incinerator technologies complete, up to date, and accurate? For oxidizers?
(3) Are the cost correlations, factors, and equations for incinerators and oxidizers accurate? If not, how should they be revised?
(4) Are the estimates of incinerators VOC destruction efficiency accurate? For oxidizers?
Environmental Protection Agency (EPA).
Notice of availability.
The Environmental Protection Agency (EPA) is reviewing the primary National Ambient Air Quality Standards (NAAQS) for Nitrogen Dioxide (NO
Comments should be received on or before December 8, 2016.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2013-0146, to the
The draft PA will be available primarily via the Internet at
Dr. Jennifer Nichols, Office of Air Quality Planning and Standards, Mail Code C504-06, U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: 919-541-0708; fax number: 919-541-5315; email:
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• Identify the notice 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 alternative 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.
Two sections of the Clean Air Act (CAA) govern the establishment and revision of the NAAQS. Section 108 (42 U.S.C. 7408) directs the Administrator to identify and list certain air pollutants and then to issue air quality criteria for those pollutants. The Administrator is to list those air pollutants that in her “judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;” “the presence of which in the ambient air results from numerous or diverse mobile or stationary sources;” and “for which * * * [the Administrator] plans to issue air quality criteria * * *.” Air quality criteria are intended to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in the ambient air * * * ” (42 U.S.C. 7408(b)). Under section 109 (42 U.S.C. 7409), the EPA establishes primary (health-based) and secondary (welfare-based) NAAQS for pollutants for which air quality criteria are issued. Section 109(d) requires periodic review and, if appropriate, revision of existing air quality criteria. The revised air quality criteria reflect advances in scientific knowledge on the effects of the pollutant on public health or welfare. The EPA is also required to periodically review and revise the NAAQS, if appropriate, based on the revised criteria. Section 109(d)(2) requires that an independent scientific review committee “shall complete a review of the criteria * * * and the national primary and secondary ambient air quality standards * * * and shall recommend to the Administrator any new * * * standards and revisions of the existing criteria and standards as may be appropriate * * *.” Since the early 1980s, this independent review function has been performed by the CASAC.
Presently, the EPA is reviewing the primary NAAQS for NO
The PA, when final, will serve to “bridge the gap” between the scientific information and the judgments required of the Administrator in determining whether to retain or revise the existing primary NAAQS for NO
The EPA is soliciting advice and recommendations from the CASAC by means of a review of this draft document at an upcoming public meeting of the CASAC, scheduled for November 9-10, 2016. Information about this public meeting will be published as a separate notice in the
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA's draft human health risk assessment for the registration review of malathion (case 0248) for public review and comment. Registration review is EPA's periodic review of pesticide registrations to ensure that each pesticide continues to satisfy the statutory standard for registration, that is, the pesticide can perform its intended function without unreasonable adverse effects on human health or the environment. As part of the registration review process, the Agency has completed a comprehensive draft human health risk assessment for malathion. After reviewing comments received during the public comment period, EPA may issue a revised human health risk assessment, explain any changes to the draft risk assessment, respond to comments, and may request public input on risk mitigation before completing its proposed registration
Comments must be received on or before November 21, 2016.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2009-0317, by one of the following methods:
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This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, farm worker, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the Chemical Review Manager identified in
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EPA is conducting its registration review of malathion pursuant to section 3(g) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136a(g)) and the Procedural Regulations for Registration Review at 40 CFR part 155, subpart C. FIFRA section 3(g) provides, among other things, that the registrations of pesticides are to be reviewed every 15 years. Under FIFRA, a pesticide product may be registered or remain registered only if it meets the statutory standard for registration given in FIFRA section 3(c)(5) (7 U.S.C. 136a(c)(5)). When used in accordance with widespread and commonly recognized practice, the pesticide product must perform its intended function without unreasonable adverse effects on the environment; that is, without any unreasonable risk to man or the environment, or a human dietary risk from residues that result from the use of a pesticide in or on food.
As directed by FIFRA section 3(g), EPA is reviewing the pesticide registrations for malathion to ensure that they continue to satisfy the FIFRA standard for registration—that is, that malathion can still be used without unreasonable adverse effects on human health or the environment. Information concerning the registration review of malathion (case 0248) is in the docket, under Docket ID No. EPA-HQ-OPP-2009-0317.
Pursuant to 40 CFR 155.53(c), EPA is providing an opportunity, through this notice of availability, for interested parties to provide comments and input concerning the Agency's draft human health risk assessment for malathion. Such comments and input could address, among other things, the Agency's risk assessment methodologies and assumptions, as applied to this draft human health risk assessment. The Agency will consider all comments received during the public comment period and make changes, as appropriate, to the draft human health risk assessment. EPA will then issue a revised risk assessment, explain any changes to the draft risk assessment, and respond to comments. In the
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• To ensure that EPA will consider data or information submitted, interested persons must submit the data or information during the comment
• The data or information submitted must be presented in a legible and useable form. For example, an English translation must accompany any material that is not in English and a written transcript must accompany any information submitted as an audiographic or videographic record. Written material may be submitted in paper or electronic form.
• Submitters must clearly identify the source of any submitted data or information.
• Submitters may request the Agency to reconsider data or information that the Agency rejected in a previous review. However, submitters must explain why they believe the Agency should reconsider the data or information in the pesticide's registration review.
As provided in 40 CFR 155.58, the registration review docket for each pesticide case will remain publicly accessible through the duration of the registration review process; that is, until all actions required in the final decision on the registration review case have been completed.
7 U.S.C. 136
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before November 21, 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.
Section 64.703(c) of the Commission's rules requires the posted consumer information to be added when an aggregator has changed the pre-subscribed operator service provider (OSP) no later than 30 days following such change. Consumers will use this information to determine whether they wish to use the services of the identified OSP.
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,
Written PRA comments should be submitted on or before November 21, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email to
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
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 November 21, 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.
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 November 21, 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.
The rules adopted by the Commission, in FCC 16-89, contain the following information collections:
Section 25.136—This rule contains both a third party coordination requirement and a filing requirement. Both requirements are necessary to ensure that Fixed Satellite Service earth stations can receive interference protection without having an undue impact on terrestrial deployment.
Section 30.3—This rule contains a filing requirement which is necessary to ascertain compliance with the foreign ownership restrictions contained in the Communications Act and the Commission's rules.
Section 30.8—This rule contains a requirement that each licensee file a statement describing its network security plans and related information, which shall be signed by a senior executive within the licensee's organization with personal knowledge of the security plans and practices within the licensee's organization. This statement is necessary to ensure that licensees properly take security into consideration when designing their systems.
Section 30.105—This rule contains filing requirements relating to demonstration of compliance with the Commission's buildout requirements. These filings are necessary in order to ensure that licensees are placing the spectrum in use and not warehousing spectrum.
Section 30.107—This rule contains filing requirements that apply when licensees propose to discontinue service. These filings are necessary in order to ensure that licensees are placing the spectrum in use and not warehousing spectrum.
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
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 October 17, 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
1.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period; withdrawal.
The Centers for Disease Control and Prevention (CDC) in the Department of Health and Human Services (HHS) announces the withdrawal of the notice published under the same title on August 25, 2016 for public comment.
Effective September 22, 2016.
Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
On August 25, 2016 CDC published a notice in the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Technical Electronic Product Radiation Safety Standards Committee. The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues. The meeting will be open to the public.
The meeting will be held on October 25, 2016, from 8:30 a.m. to 5 p.m. and October 26, 2016, from 8:30 a.m. to 5 p.m.
Gaithersburg Holiday Inn, Ballroom, Two Montgomery Village Ave., Gaithersburg, MD 20879. The hotel's telephone number is 301-948-8900. Answers to commonly asked questions including information regarding special accommodations due to a disability, visitor parking, and transportation may be accessed at:
Sara J. Anderson, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1643, Silver Spring, MD 20993-0002,
On October 25, 2016, the committee will discuss and make recommendations regarding possible FDA performance standards for the following topics: Radiofrequency (RF) radiation products, such as microwave ovens and wireless power transfer; laser products, including an update to amendments to the laser rule, light detection and ranging (LIDAR), laser data (Light Fidelity-LiFi)/energy transfer, illumination applications and infrared applications; sunlamp products including an update on the performance standards amendments; and non-coherent light sources (
On October 26, 2016, the committee will discuss and make recommendations regarding possible FDA performance standards for the following topics: International Electrotechnical Commission (IEC) standards versus performance standards for medical devices; computed tomography (CT); radiography and fluoroscopy; diagnostic and therapeutic ultrasound; and radiation therapy.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact AnnMarie Williams at
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a guidance for industry #233 entitled “Veterinary Feed Directive Common Format Questions and Answers.” FDA had received comments requesting that we require a uniform Veterinary Feed Directive (VFD) form. We declined this request because we think that requiring a specific VFD form would be too prescriptive. However, we acknowledge that a common VFD format would help veterinarians, their clients (
Submit either electronic or written comments on Agency guidances at any time.
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
Submit written requests for single copies of the guidance to the Policy and Regulations Staff (HFV-6), Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Dragan Momcilovic, Center for Veterinary Medicine (HFV-226), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-5944, email:
Following publication of the proposed rule to update FDA's veterinary feed directive (VFD) regulation in December 2013 (78 FR 75515), in the
This level 1 guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on Veterinary Feed Directive Common Format Questions and Answers. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR 514.1 have been approved under OMB Control No. 0910-0032. The collections of information in 21 CFR 558.6 have been approved under OMB Control No. 0910-0363.
Persons with access to the Internet may obtain the guidance at either
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
HRSA is giving notice that the Advisory Committee on Organ Transplantation (ACOT) has been rechartered. The effective date of the renewed charter is September 1, 2016.
Robert Walsh, Executive Secretary, Advisory Committee on Organ Transplantation, HRSA, Room 08W60, 5600 Fishers Lane, Rockville, MD 20857. Phone: (301) 443-6839; fax: (301) 594-6095; email:
Under the authority of 42 U.S.C. Section 217a, Section 222 of the Public Health Service Act, as amended, 42 CFR 121.12 (2000), and in accordance with the Federal Advisory Committee Act (FACA), Public Law 92-463, ACOT was initially chartered on September 1, 2000, and was renewed at appropriate intervals. ACOT provides advice to the Secretary of HHS (the Secretary) on all aspects of organ donation, procurement, allocation, and transplantation, and on such other matters that the Secretary determines. The recommendations of ACOT facilitate Department efforts to oversee the Organ Procurement and Transplantation Network, as set forth in the National Organ Transplant Act of 1984, as amended.
On August 31, 2016, the Secretary approved the ACOT charter to be renewed. The filing date of the renewed charter was September 1, 2016. Renewal of the ACOT charter gives authorization for the Committee to operate until September 1, 2018.
A copy of the ACOT charter is available on the ACOT Web site at
Notice of public meeting.
This notice announces the meeting date for the second Technical Advisory Panel on Medicare Trustee Reports on Friday, September 30, 2016 in Washington, DC.
The meeting will be held on Friday, September 30, 2016 from 9:00 a.m. to 5:00 p.m.. Eastern Daylight Time (EDT) and it is open to the public.
This will be a virtual meeting held via WebEx.
Dr. Donald Oellerich, Designated Federal Officer, at the Office of Human Services Policy, Assistant Secretary for Planning and Evaluation, U.S. Department of Health and Human Services, 200 Independence Ave. SW., Washington, DC 20201, (202) 690-8410.
The public may join the meeting through WebEx. Space is limited and registration is
A confirmation email with the WebEx information will be sent to the registrants shortly after completing the registration process. If language interpretation or other reasonable accommodation for a disability is needed, please contact Dr. Oellerich, no later than Sept 24, 2016 by sending an email message to
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Cancer Institute Board of Scientific Advisors.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting. The meeting will also be videocast and can be accessed from the NIH Videocasting and Podcasting Web site (
Open: October 31, 2016, 1:00 p.m. to 4:00 p.m.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NCI Shady Grove has instituted stringent procedures for entrance into the NCI Shady Grove building. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
National Institutes of Health, HHS.
Notice.
The National Cancer Institute, an institute of the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an exclusive patent license to practice the inventions embodied in the U.S. Patents and Patent Applications listed in the Summary Information section of this notice to Aspyrian Therapeutics, Inc. (“Aspyrian”) located in San Diego, California USA.
Only written comments and/or applications for a license which are received by the National Cancer Institute's Technology Transfer Center on or before October 7, 2016 will be considered.
Requests for copies of the patent application, inquiries, and comments relating to the contemplated exclusive license should be directed to: Thomas Clouse, J.D., Senior Licensing and Patenting Manager, NCI Technology Transfer Center, 9609 Medical Center Drive, RM 1E530 MSC 9702, Bethesda, MD 20892-9702 (for business mail), Rockville, MD 20850-9702 Telephone: (240)-276-5530; Facsimile: (240)-276-5504 Email:
United States Provisional Patent Application No. 62/202,252, filed August 7, 2015 “Near Infrared PhotoImmunoTherapy (NIR-PIT) of Suppressor Cells to Treat Cancer” [HHS Reference No. E-231-2015/0-US-01]; and
PCT Patent Application PCT/US2016/045090, filed August 2, 2016 “Near Infrared PhotoImmunoTherapy (NIR-PIT) of Suppressor Cells to Treat Cancer” [HHS Reference No. E-231-2015/0-PCT-02].
The patent rights in these inventions have been assigned and/or exclusively licensed to the government of the United States of America.
The prospective exclusive license territory may be worldwide and the field of use may be limited to the use of Licensed Patent Rights for the following: “Use of photosensitizing antibody-fluorophore conjugate defined by the Licensed Patent Rights by itself for PhotoImmunoTherapy (PIT), or in combination with cancer therapeutic agents, to treat cancer or hyperplasia.”
This technology discloses the concept of binding an anti-foxp3+ antibody to IR700 to bind to foxp3+ T-cells. When irradiated with near infrared light localized at the site of the solid tumor, controlled local knockdown of foxp3+ negative regulatory T-cells in tumors results in rapid tumor death without the severe autoimmune response that is induced by systemic knock-down of foxp3+ T-cells. Theoretically, this technology can be used in a broad spectrum of patients with a variety of solid cancers including those with
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR part 404.7. The prospective exclusive license may be granted unless within fifteen (15) days from the date of this published notice, the National Cancer Institute receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.7.
Complete applications for a license in the prospective field of use that are filed in response to this notice will be treated as objections to the grant of the contemplated Exclusive Patent License Agreement. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the
Notice is hereby given of the cancellation of the National Institute of Mental Health Special Emphasis Panel, September 14, 2016, 10:00 a.m. to September 14, 2016, 11:00 a.m., National Institutes of Health, NSC, 6001 Executive Boulevard, Bethesda, MD 20892 which was published in the
The meeting notice is being cancelled due to reviewer conflicts. The review will be rescheduled.
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 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
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Coast Guard, Department of Homeland Security.
Notice of Federal advisory committee meeting.
The National Offshore Safety Advisory Committee and its Subcommittee will hold meetings in Houston, TX to discuss the safety of operations and other matters affecting the offshore oil and gas industry. These meetings are open to the public.
The Well Intervention Subcommittee of the National Offshore
The meetings will be held at the Offices of Beirne, Maynard and Parsons, L.L.P., 25th Floor Conference Room, 1300 Post Oak Blvd., Houston, TX 77056. Phone (713) 968-3811.
For information on facilities or services for individuals with disabilities, or to request special assistance at the meetings, contact the individuals listed in the
A public oral comment period will be held during the meeting on November 2, 2016, and speakers are requested to limit their comments to 3 minutes. Contact one of the individuals listed below to register as a speaker.
Commander Jose Perez, Designated Federal Officer of the National Offshore Safety Advisory Committee, Commandant (CG-OES-2), U.S. Coast Guard, 2703 Martin Luther King, Jr. Avenue SE., Stop 7509, Washington, DC 20593-7509; telephone (202) 372-1410, fax (202) 372-8382 or email
Notice of this meeting is in compliance with the
A copy of all meeting documentation including the agenda, any draft final reports, new task statement and presentations will be available at
The Subcommittee on Well Intervention Activities on the Outer Continental Shelf will meet on November 1, 2016 from 1 p.m. to 2:30 p.m. (Central Daylight Time) to review, discuss, and formulate recommendations.
The National Offshore Safety Advisory full Committee will hold a public meeting on November 2, 2016 from 8:00 a.m. to 6:00 p.m. (Central Daylight Time) to review and discuss the progress of, and any reports and recommendations received from, the above listed Subcommittee from their deliberations on November 1, 2016. The Committee will then use this information and consider public comments in formulating recommendations to the U.S. Coast Guard. Public comments or questions will be taken at the discretion of the Designated Federal Officer during the discussion and recommendation portions of the meeting and during the public comment period, see Agenda item (6).
A complete agenda for November 2, 2016 Committee meeting is as follows:
(1) Welcoming remarks.
(2) General Administration and accept minutes from March 2016 National Offshore Safety Advisory Committee public meeting.
(3) Current Business—Presentation and discussion of updates and a final report to include recommendations from the Subcommittee on Well Intervention.
(4) New Business.
(a) Discussion of any new business items.
(b) Introduction of a task statement requesting National Offshore Safety Advisory Committee's input on the draft Navigation and Vessel Inspection Circular on Cyber Security for Marine Operations on the U.S. Outer Continental Shelf.
(5) Presentations on the following matters:
(a) Eighth Coast Guard District Officer in Charge Marine Inspection Risk Based Inspection Program;
(b) Oil Companies International Marine Forum presentation on their Offshore Vessel Inspection Database Program;
(c) Update from the Bureau of Safety and Environmental Enforcement;
(d) Strengthening the Safety Culture of the Offshore Oil and Gas Industry Report presented by representatives from the Transportation Research Board.
(6) Public comment period.
Meeting minutes from this public meeting will be available for public view and copying within 90 days following the close of the meeting at the
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Louisiana (FEMA-4277-DR), dated August 14, 2016, and related determinations.
Effective August 31, 2016.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
Notice is hereby given that the incident period for this disaster is closed effective August 31, 2016.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency (FEMA) is accepting comments on the
Comments must be received by October 24, 2016.
Comments must be identified by docket ID FEMA-2014-0005 and may be submitted by one of the following methods:
Mark Millican, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (phone) 202-212-3221 or (email)
You may submit your comments and material by the methods specified in the
Section 1109 of the Sandy Recovery Improvement Act of 2013
The proposed guidance does not have the force or effect of law.
FEMA seeks comment on the proposed guidance, which is available online at
Pub. L. 113-2.
Federal Emergency Management Agency, DHS.
Final notice.
New or modified Base(1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Louisiana (FEMA-4277-DR), dated August 14, 2016, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Louisiana is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of August 14, 2016.
St. James and West Baton Rouge Parishes for Individual Assistance.
Assumption, Cameron, St. Charles, St. James, St. John the Baptist, and West Baton Rouge Parishes for Public Assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Title 44, Part 65 of the Code of Federal Regulations (44 CFR part 65). The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Final notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Final notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The effective date of January 20, 2017 which has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
I. Non-Watershed-Based Studies:
Federal Emergency Management Agency, DHS.
Final notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below.
The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report are used by insurance agents and others to calculate appropriate flood insurance premium rates for buildings and the contents of those buildings.
The effective date of January 6, 2017 which has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
Federal Emergency Management Agency, DHS.
Final notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Title 44, Part 65 of the Code of Federal Regulations (44 CFR part 65). The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW., Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Office of the Secretary, DHS.
Notice.
This notice announces the appointment of the members of the Senior Executive Service Performance Review Boards for the Department of Homeland Security. The purpose of the Performance Review Board (PRB) is to view and make recommendations concerning proposed performance appraisals, ratings, bonuses, pay adjustments, and other appropriate personnel actions for incumbents of Senior Executive Service, Senior Level and Senior Professional positions of the Department.
This Notice is effective September 22, 2016.
Elizabeth Haefeli, Office of the Chief Human Capital Officer, telephone (202) 357-8164.
Each Federal agency is required to establish one or more performance review boards to make recommendations, as necessary, in regard to the performance of senior executives within the agency. 5 U.S.C. 4314(c). This notice announces the appointment of the members of the PRB for the Department of Homeland Security (DHS). The purpose of the PRB is to review and make recommendations concerning proposed performance appraisals, ratings, bonuses, pay adjustments, and other appropriate personnel actions for incumbents of SES positions within DHS.
The Board shall consist of at least three members. In the case of an appraisal of a career appointee, more than half of the members shall consist of career appointees. Composition of the specific PRBs will be determined on an ad hoc basis from among the individuals listed below:
This notice does not constitute a significant regulatory action under sec. 3(f) of E.O. 12866. Therefore, DHS has not submitted this notice to the Office of Management and Budget. Further, because this notice is a matter of agency organization, procedure and practice, DHS is not required to follow the rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553).
Office of Infrastructure Protection, National Protection and Programs Directorate, DHS.
Study Participation; notice for voluntary participation regarding Positioning, Navigation, and Timing Study.
The purpose of this notice is to inform the public that the Departmenet of Homeland Security (DHS) Science and Technology Directorate (S&T) and DHS National Protection and Programs Directorate (NPPD), Office of Infrastructure Protection (IP) are engaging critical infrastructure sector owners and operators in a study to define and validate current and future positioning, navigation, and timing (PNT) requirements for critical infrastructure. This study will be coordinated with the Department of Transportation, which is establishing PNT requirements for the transportation sector. The requirements defined and validated by the study will support key decisions in the development of complementary PNT solution(s).
Accurate PNT is essential for critical infrastructures across the country. Currently, the Global Positioning System (GPS) is the primary source of PNT information. However, GPS signals are susceptible to both unintentional and intentional disruption leaving critical infrastructure vulnerable to operational impacts from disruptions. Due to the essential need for precise timing within many of the critical infrastructure sectors, DHS will initially focus the study on timing requirements within the electricity and wireless communications sectors. Subsequently, DHS will engage additional sectors and expand the study to include positioning and navigation requirements.
Organizations or individuals interested in providing PNT requirements or other information pertaining to the study should contact the points of contact below by February 28, 2017: John Dragseth, NPPD, DHS,
Office for Civil Rights and Civil Liberties, DHS.
60-Day notice and request for comments; New Collection, 1601-NEW.
The Department of Homeland Security (DHS), Office for Civil Rights and Civil Liberties, will submit the following Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted until November 21, 2016. This process is conducted in accordance with 5 CFR 1320.1
You may submit comments, identified by docket number DHS-2016-0068, by one of the following methods:
•
•
Recipients of Federal financial assistance from DHS are required to meet certain legal requirements relating to nondiscrimination and nondiscriminatory use of Federal funds. Those requirements include ensuring that entities receiving Federal financial assistance from DHS do not deny benefits or services, or otherwise discriminate on the basis of race, color, national origin, disability, age, or sex, in accordance with the following authorities: Title VI of the Civil Rights Act of 1964 (Title VI) Public Law 88-352, 42 U.S.C. 2000d-1
DHS has an obligation to enforce nondiscrimination requirements to ensure that its Federally-assisted programs and activities are administered in a nondiscriminatory manner. In order to carry out its enforcement responsibilities, DHS must obtain a signed assurance of compliance and collect and review information from recipients to ascertain their compliance with applicable requirements. DHS implementing regulations and the Department of Justice (DOJ) regulation Coordination of Non-discrimination in Federally Assisted Program, 28 CFR part 42, provide for the collection of data and information from recipients (see 28 CFR 42.406).
DHS has developed the DHS Civil Rights Compliance Form as the primary tool to implement this information collection. The purpose of the information collection is to advise recipients of their civil rights obligation; obtain an assurance of compliance from each recipient, and collect pertinent civil rights information to ascertain if the recipient has in place adequate policies and procedures to achieve compliance, and to determine what, if any, further action may be needed (technical assistance, training, compliance review, etc.) to ensure the recipient is in compliance and will carry out its programs and activities in a nondiscriminatory manner. DHS will make available sample policies and procedures to assist recipients in completing Section 4 of the Form, and providing technical assistance directly to recipients as needed.
DHS will use the DHS Civil Rights Compliance Form to collect civil rights related information from all primary recipients of Federal financial assistance from the Department. Primary recipients are non-federal entities that receive Federal financial assistance in the form of a grant, cooperative agreement, or other type of financial assistance directly from the Department and not through another recipient or “pass-through” entity. This information collection does not apply to sub-recipients, Federal contractors (unless the contract includes the provision of financial assistance), nor the ultimate beneficiaries of services, financial aid, or other benefits from the Department. Recipients will be required to provide the information once every two years, not every time a grant is awarded. Entities whose award does not run a full two years are required to provide the information again if they receive a subsequent award more than two (2) years after the prior award. In responding to Section 4: Required Information, which contains the bulk of the information collection, if the recipient's responses have not changed in the two year period since their initial submission, the recipient does not need to resubmit the information. Instead, the recipient will indicate “no change” for each applicable item. DHS will require recipients to submit their completed forms and supporting information electronically, via email, to the Department, in an effort to minimize administrative burden on the recipient and the Department. DHS anticipates that records or files that will be used to respond to the information collection are already maintained in electronic format by the recipient, so providing the information electronically will further minimize administrative burden. DHS will allow recipients to scan and submit documents that are not already maintained electronically. If the recipient is unable to submit their information electronically, alternative arrangements will be made to submit responses in hard copy.
There are no confidentiality assurances associated with this collection. The system of record notices associated with this information collection are: DHS/ALL-029—Civil Rights and Civil Liberties Records, (July 8, 2010, 75 FR 39266) and DHS/ALL-016—Department of Homeland Security Correspondence Records, (November 10, 2008, 73 FR 66657). The privacy impact assessment associated with this information collection is pending. The DHS Civil Rights Compliance Form is subject to the Privacy Act and will contain a Privacy Act Statement.
This is a new information collection. The Office of Management and Budget is particularly interested in comments which:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Bureau of Land Management, Interior.
60-Day notice and request for comments.
In compliance with the Paperwork Reduction Act, the Bureau of Land Management (BLM) invites public comments on, and plans to request approval to continue, the collection of information from individuals, private entities, and State or local governments seeking leases, permits, and easements for the use, occupancy, or development of public lands administered by the BLM. The Office of Management and Budget (OMB) has assigned control number 1004-0009 to this information collection.
Please submit comments on the proposed information collection by November 21, 2016.
Comments may be submitted by mail, fax, or electronic mail.
Please indicate “Attn: 1004-0009” regardless of the form of your comments.
Jeff Cartwright, at (202) 912-7336. Persons who use a telecommunication device for the deaf may call the Federal Information Relay Service at 1-800-877-8339, to leave a message for Mr. Cartwright.
OMB regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act, 44 U.S.C. 3501-3521, require that interested members of the public and affected agencies be given an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8 (d) and 1320.12(a)). This notice identifies an information collection that the BLM plans to submit to OMB for approval. The Paperwork Reduction Act provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond.
The BLM will request a 3-year term of approval for this information collection activity. Comments are invited on: (1) The need for the collection of information for the performance of the functions of the agency; (2) the accuracy of the agency's burden estimates; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information. A summary of the public comments will accompany our submission of the information collection requests to OMB.
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.
The following information pertains to this request:
The estimated burdens are itemized in the following table:
Alaska State Office, Bureau of Land Management, Interior.
Notice of public meetings.
In accordance with the Federal Land Policy and Management Act of 1976 as amended (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the Bureau of Land Management (BLM) Alaska Resource Advisory Council (RAC) and associated placer mining subcommittee will meet as indicated below.
The RAC will meet October 24-25, 2016, beginning at 1 p.m. on the first day and at 8 a.m. on the second day. The RAC placer mining subcommittee will meet October 24 from 9 a.m.-12 p.m. Both meetings will be held at the BLM Alaska State Office, Denali conference room, located on the fourth floor of the federal courthouse building, at 222 W. 7th Avenue, Anchorage, Alaska. The council will accept comments from the public on October 24 from 4:30 to 5:30 p.m.
June Lowery, RAC Coordinator, BLM Alaska State Office, 222 W. 7th Avenue #13, Anchorage, AK 99513;
The 15-member council advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in Alaska. At this meeting, the council will hear the RAC placer mining subcommittee's report and associated recommendations from their July field trip to Chicken, Alaska. The council will also receive updates on current planning efforts and an update
All meetings are open to the public. Depending upon the number of people wishing to comment, time for individual oral comments may be limited. Please be prepared to submit written comments. 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. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should contact the BLM RAC Coordinator listed above.
National Park Service, Interior.
Notice; request for comments.
We (National Park Service, NPS) have sent an Information Collection Request (ICR) to OMB for review and approval. We summarize the ICR below and describe the nature of the collection and the estimated burden and cost. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
You must submit comments on or before October 24, 2016.
Send your comments and suggestions on this information collection to the Desk Officer for the Department of the Interior at OMB-OIRA at (202) 395-5806 (fax) or
To request additional information about this IC, please contact Frances Hill, Manager, Office of Property Management, National Park Service, 13461 Sunrise Valley Drive, Herndon, VA 20171-3272 (mail); or
The NPS Organic Act of 1916 (Organic Act) (54 U.S.C. 100101
Reporting of lost or found personal property in national parks is governed by 36 CFR 2.22, “Disposition of Property” which requires unattended property be impounded and deemed to be abandoned unless claimed by the owner or an authorized representative within 60 days. The 60-day period commences upon notification to the rightful owner of the property, if the owner can be identified, or from the time the property was placed in the superintendent's custody, if the owner cannot be identified.
Unclaimed property must be stored for a minimum period of 60 days and unless claimed by the owner or an authorized representative, may be claimed by the finder, provided the finder is not an employee of the National Park Service (NPS). Found property not claimed by the owner, an authorized representative of the owner, or the finder, shall be deemed abandoned and disposed of in accordance with Title 41 Code of Federal Regulations.
In order to comply with the requirements of 36 CFR 2.22, the NPS utilizes NPS Form 10-166, “Lost-Found Report” to allow the park to properly identify personal property reported as lost or found and to return found items to the legitimate owner, when possible, or to the finder if the item is not claimed by the owner or their authorized representative. NPS Form 10-166 collects the following information from the visitor filing the report:
• Park name, receiving station (if appropriate), and date item was lost or found;
• Name, address, city, state, zip code, email address, and contact phone numbers (cell and home);
• Type of item, detailed description of item, and location where the item was last seen or found;
• Photograph of item (if available); and
On June 10, 2015, we published in the
We again invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. 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 OMB and us in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
National Park Service, Interior.
Notice; request for comments.
We (National Park Service, NPS) have sent an Information Collection Request (ICR) to OMB for review and approval. We summarize the ICR below and describe the nature of the collection and the estimated burden and cost. This information collection is scheduled to expire on October 31, 2016. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. However, under OMB regulations, we may continue to conduct or sponsor this information collection while it is pending at OMB.
You must submit comments on or before October 24, 2016.
Send your comments and suggestions on this information collection to the Desk Officer for the Department of the Interior at OMB-OIRA at (202) 395-5806 (fax) or
To request additional information about this IC, contact Christina Mills, Outdoor Recreation Planner, Yellowstone National Park, National Park Service, PO Box 168, Yellowstone National Park, WY 82190; (307) 344-2320 (phone); or
The Yellowstone National Park Organic Act (54 U.S.C. 100301-1000302), signed March 1, 1872, established Yellowstone National Park to “dedicate and set apart as a public park or pleasuring-ground for the benefit and enjoyment of the people” and “for the preservation, from injury or spoliation, of all timber, mineral deposits, natural curiosities, or wonders within said park, and their retention in their natural condition” The Organic Act of 1916 (54 U.S.C. 100101
We (NPS) provide opportunities for people to experience Yellowstone in the winter via oversnow vehicles (snowmobiles and snowcoaches, collectively OSVs). Access to most of the park in the winter is limited by distance and the harsh winter environment, which presents challenges to safety and park operations. The park does not provide wintertime OSV tours directly, but currently authorizes OSV tours through concessions contracts (for snowcoach tours) and commercial use authorizations (for snowmobile tours) with area businesses to provide transportation to visitors (Title IV, Section 403 of the National Parks Omnibus Management Act of 1998, Pub. L. 105-391). The park issued 10-year concession contracts for all OSVs starting in December 2014.
OSV use is a form of off-road vehicle use governed by Executive Order 11644 (Use of Off-road Vehicles on Public Lands, as amended by Executive Order 11989). Implementing regulations are published at 36 CFR 2.18, 36 CFR part 13, and 43 CFR part 36. Routes and areas may be designated for OSV use only by special regulation after it has first been determined through park planning to be an appropriate use that will meet the requirements of 36 CFR 2.18 and not otherwise result in unacceptable impacts.
Information collection requirements in this renewal request include:
(1)
(a) Snowcoach manufacturers or commercial tour operators must demonstrate, by means acceptable to the Superintendent, that their snowcoaches meet the standards.
(b) Snowmobile manufacturers must demonstrate, by means acceptable to the Superintendent, that their snowmobiles meet the standards.
(2)
(a) Maintain accurate and complete records on the number of snowmobiles and snowcoaches he or she brings into the park on a daily basis. These records must be made available for inspection by the park upon request.
(b) Provide a monthly use report on their activities. Form 10-650, “Concessioner Monthly Use Report”, available on the park Web site, is used to collect the following information for transportation events:
(3)
(a) Before the start of each winter season, demonstrate, by means acceptable to the Superintendent, that his or her snowmobiles or snowcoaches meet the enhanced emission standards; and
(b) Maintain separate records for snowmobiles and snowcoaches that meet enhanced emission standards and those that do not.
We will use the information collected to:
Responsible commercial tour operators are required to provide this information to minimize liabilities, maintain business records for tax and other purposes, obtain financial backing, and ensure a safe, efficient, and well-planned operation.
On March 15, 2016, we published in the
We again invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Please note that the comments submitted in response to this notice are a matter of public record. 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 OMB or us in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
60-day Notice.
To comply with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Safety and Environmental Enforcement (BSEE) is inviting comments on a collection of information that we will submit to the Office of Management and Budget (OMB) for review and approval. The information collection request (ICR) concerns a renewal to the paperwork requirements in the regulations under Subpart I,
You must submit comments by November 21, 2016.
You may submit comments by either of the following methods listed below.
• Electronically go to
• Email
Nicole Mason, Regulations and Standards Branch, (703) 787-1607, to request additional information about this ICR.
In addition to the general rulemaking authority of the OCSLA at 43 U.S.C. 1334, section 301(a) of the Federal Oil and Gas Royalty Management Act (FOGRMA), 30 U.S.C. 1751(a), grants authority to the Secretary to prescribe such rules and regulations as are reasonably necessary to carry out FOGRMA's provisions. While the majority of FOGRMA is directed to royalty collection and enforcement, some provisions apply to offshore operations. For example, section 108 of FOGRMA, 30 U.S.C. 1718, grants the Secretary broad authority to inspect lease sites for the purpose of determining whether there is compliance with the mineral leasing laws. Section 109(c)(2) and (d)(1), 30 U.S.C. 1719(c)(2) and (d)(1), impose substantial civil penalties for failure to permit lawful inspections and for knowing or willful preparation or submission of false, inaccurate, or misleading reports, records, or other information. Because the Secretary has delegated some of the authority under FOGRMA to BSEE, 30 U.S.C. 1751 is included as additional authority for these requirements.
The Independent Offices Appropriations Act (31 U.S.C. 9701), the Omnibus Appropriations Bill (Pub. L. 104-133, 110 Stat. 1321, April 26, 1996), and OMB Circular A-25, authorize Federal agencies to recover the full cost of services that confer special benefits. Under the Department of the Interior's implementing policy, BSEE is required to charge fees for services that provide special benefits or privileges to an identifiable non-Federal recipient above and beyond those which accrue to the public at large. Various applications, reports, and certifications for Platform Verification Program, fixed structure, Caisson/Well Protector, and modification repairs are subject to cost recovery, and BSEE regulations specify service fees for these requests.
These authorities and responsibilities are among those delegated to BSEE. The regulations at 30 CFR 250, Subpart I, pertain to Platforms and Structures and are the subject of this collection. This request also covers the related Notices to Lessees and Operators (NTLs) that BSEE issues to clarify, supplement, or provide additional guidance on some aspects of our regulations.
Some responses are mandatory and some are required to obtain or retain a benefit. No questions of a sensitive nature are asked. BSEE will protect proprietary information according to the Freedom of Information Act (5 U.S.C. 552) and DOI's implementing regulations (43 CFR 2); 30 CFR part 250.197,
The BSEE uses the information submitted under Subpart I to determine the structural integrity of all OCS platforms and floating production facilities and to ensure that such integrity will be maintained throughout the useful life of these structures. We use the information to ascertain, on a case-by-case basis, that the fixed and floating platforms and structures are structurally sound and safe for their intended use to ensure safety of personnel and prevent pollution. More specifically, we use the information to:
• Review data concerning damage to a platform to assess the adequacy of proposed repairs.
• Review applications for platform construction (construction is divided into three phases-design, fabrication, and installation) to ensure the structural integrity of the platform.
• Review verification plans and third-party reports for unique platforms to ensure that all nonstandard situations are given proper consideration during the platform design, fabrication, and installation.
• Review platform design, fabrication, and installation records to ensure that the platform is constructed according to approved applications.
• Review inspection reports to ensure that platform integrity is maintained for the life of the platform.
Agencies must also estimate the non-hour paperwork cost burdens to respondents or recordkeepers resulting from the collection of information. Therefore, if you have other non-hour burden costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. For further information on this burden, refer to 5 CFR 1320.3(b)(1) and (2), or contact the Bureau representative listed previously in this notice.
We will summarize written responses to this notice and address them in our submission for OMB approval. As a result of your comments, we will make any necessary adjustments to the burden in our submission to OMB.
60-day notice.
To comply with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Safety and Environmental Enforcement (BSEE) is inviting comments on a collection of information that we will submit to the Office of Management and Budget (OMB) for review and approval. The information collection request (ICR) concerns a renewal to the paperwork requirements in the regulations under 30 CFR 250 where it pertains to an Application for Permit Drill (APD, Revised APD), Supplemental APD Information Sheet, and all supporting documentation.
You must submit comments by November 21, 2016.
You may submit comments by either of the following methods listed below.
• Electronically go to
• Email
Nicole Mason, Regulations and Standards Branch, (703) 787-1607, to request additional information about this ICR.
In addition to the general rulemaking authority of the OCSLA at 43 U.S.C. 1334, section 301(a) of the Federal Oil and Gas Royalty Management Act (FOGRMA), 30 U.S.C. 1751(a), grants authority to the Secretary to prescribe such rules and regulations as are reasonably necessary to carry out FOGRMA's provisions. While the majority of FOGRMA is directed to royalty collection and enforcement, some provisions apply to offshore operations. For example, section 108 of FOGRMA, 30 U.S.C. 1718, grants the Secretary broad authority to inspect lease sites for the purpose of determining whether there is compliance with the mineral leasing laws. Section 109(c)(2) and (d)(1), 30 U.S.C. 1719(c)(2) and (d)(1), impose substantial civil penalties for failure to permit lawful inspections and for knowing or willful preparation or submission of false, inaccurate, or misleading reports, records, or other information. Because the Secretary has delegated some of the authority under FOGRMA to BSEE, 30 U.S.C. 1751 is included as additional authority for these requirements.
The Independent Offices Appropriations Act (31 U.S.C. 9701), the Omnibus Appropriations Bill (Pub. L. 104-133, 110 Stat. 1321, April 26, 1996), and OMB Circular A-25, authorize Federal agencies to recover the full cost of services that confer special benefits. Under the Department of the Interior's implementing policy, BSEE is required to charge fees for services that provide special benefits or privileges to an identifiable non-Federal recipient above and beyond those which accrue to the public at large. Applications for permits to drill and modification approvals are subject to cost recovery, and BSEE regulations specify service fees for these requests.
These authorities and responsibilities are among those delegated to BSEE. The regulations at 30 CFR 250 stipulate the various requirements that must be submitted with forms BSEE-0123 (Application for Permit to Drill) and BSEE-0123S (Supplemental APD Information Sheet), and the numerous submittals included with them; and are the subject of this collection.
This request also covers related Notices to Lessees and Operators (NTLs) that BSEE issues to clarify, supplement, or provide additional guidance on some aspects of our regulations.
Some responses are mandatory and some are required to obtain or retain a benefit. No questions of a sensitive nature are asked. BSEE will protect proprietary information according to the Freedom of Information Act (5 U.S.C. 552) and DOI's implementing regulations (43 CFR 2); 30 CFR part 250.197,
BSEE uses the information to ensure safe drilling operations and to protect the human, marine, and coastal environment. Among other things, BSEE specifically uses the information to ensure: The drilling unit is fit for the intended purpose; the lessee or operator will not encounter geologic conditions that present a hazard to operations; equipment is maintained in a state of readiness and meets safety standards; each drilling crew is properly trained and able to promptly perform well-control activities at any time during well operations; compliance with safety standards; and the current regulations will provide for safe and proper field or reservoir development, resource evaluation, conservation, protection of correlative rights, safety, and environmental protection. We also review well records to ascertain whether drilling operations have encountered hydrocarbons or H2S and to ensure that H2S detection equipment, personnel protective equipment, and training of the crew are adequate for safe operations in zones known to contain H2S and zones where the presence of H2S is unknown.
Also, we use the information to determine the conditions of a drilling site to avoid hazards inherent in drilling operations. Specifically, we use the information to evaluate the adequacy of a lessee's or operator's plan and equipment for drilling, sidetracking, or deepening operations. This includes the adequacy of the proposed casing design, casing setting depths, drilling fluid (mud) programs, cementing programs, and blowout preventer (BOP) systems to ascertain that the proposed operations will be conducted in an operationally safe manner that provides adequate protection for the environment. The BSEE also reviews the information to ensure conformance with specific provisions of the lease. In addition, except for proprietary data, BSEE is required by the OCSLA to make available to the public certain information.
The information on the forms is as follows:
[
Before submitting an ICR to OMB, PRA section 3506(c)(2)(A) requires each agency “. . . to provide notice . . . and otherwise consult with members of the public and affected agencies concerning each proposed collection of information . . .”. Agencies must specifically solicit comments to: (a) Evaluate whether the collection is necessary or useful; (b) evaluate the accuracy of the burden of the proposed collection of information; (c) enhance the quality, usefulness, and clarity of the information to be collected; and (d) minimize the burden on the respondents, including the use of technology.
Agencies must also estimate the non-hour paperwork cost burdens to respondents or recordkeepers resulting from the collection of information. Therefore, if you have other non-hour burden costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. For further information on this burden, refer to 5 CFR 1320.3(b)(1) and (2), or contact the Bureau representative listed previously in this notice.
We will summarize written responses to this notice and address them in our submission for OMB approval. As a result of your comments, we will make any necessary adjustments to the burden in our submission to OMB.
60-day notice.
To comply with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Safety and Environmental Enforcement (BSEE) is inviting comments on a collection of information that we will submit to the Office of Management and Budget (OMB) for review and approval. The information collection request (ICR) concerns a renewal to the paperwork requirements in the regulations under 30 CFR 291,
You must submit comments by November 21, 2016.
You may submit comments by either of the following methods listed below.
• Electronically go to
• Email
Nicole Mason, Regulations and Standards Branch, (703) 787-1607, to request additional information about this ICR.
The OCSLA requires open and nondiscriminatory access to oil and gas pipelines; as well as provides the Secretary of the Interior the authority to issue and enforce rules to assure open and nondiscriminatory access to pipelines. These regulations provide a mechanism for entities who believe they have been denied open and nondiscriminatory access to pipelines on the OCS. The BSEE established a process, via the subject regulations, to submit complaints alleging denial of access or discriminatory access for a shipper transporting oil or gas production from Federal leases on the OCS. The complaint should include certain minimal data in order for BSEE to begin an investigation. Upon completion of an investigation, BSEE will propose a remedial action.
The Independent Offices Appropriations Act (31 U.S.C. 9701), the Omnibus Appropriations Bill (Pub. L. 104-133, 110 Stat. 1321, April 26, 1996), and OMB Circular A-25, authorize Federal agencies to recover the full cost of services that confer special benefits. Under the Department of the Interior's implementing policy, BSEE is required to charge fees for services that provide special benefits or privileges to an identifiable non-Federal recipient above and beyond those which accrue to the public at large. Regulations at §§ 291.106(b) and 291.108 require a nonrefundable processing fee of $7,500 that a shipper must pay when filing a complaint to BSEE.
The responses are voluntary and some are required to obtain or retain a benefit. No questions of a sensitive nature are asked. BSEE will protect proprietary information according to the Freedom of Information Act (5 U.S.C. 552) and DOI's implementing regulations (43 CFR 2); 30 CFR part 250.197,
The BSEE uses the submitted information to initiate a more detailed investigation into the specific circumstances associated with a complainant's allegation of denial of access or discriminatory access to pipelines on the OCS. The complaint information will be provided to the alleged offending party. The BSEE may request additional information upon completion of the initial investigation.
Agencies must also estimate the non-hour paperwork cost burdens to respondents or recordkeepers resulting from the collection of information. Therefore, if you have other non-hour burden costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. For further information on this burden, refer to 5 CFR 1320.3(b)(1) and (2), or contact the Bureau representative listed previously in this notice.
We will summarize written responses to this notice and address them in our submission for OMB approval. As a result of your comments, we will make any necessary adjustments to the burden in our submission to OMB.
60-day notice.
To comply with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Safety and Environmental Enforcement (BSEE) is inviting comments on a collection of information that we will submit to the Office of Management and Budget (OMB) for review and approval. The information collection request (ICR) concerns a renewal to the paperwork requirements in the regulations under 30 CFR 250 where it pertains to an Application for Permit to Modify (APM) and all supporting documentation.
You must submit comments by November 21, 2016.
You may submit comments by either of the following methods listed below.
• Electronically go to
• Email
Nicole Mason, Regulations and Standards Branch, (703) 787-1607, to request additional information about this ICR.
In addition to the general rulemaking authority of the OCSLA at 43 U.S.C. 1334, section 301(a) of the Federal Oil and Gas Royalty Management Act (FOGRMA), 30 U.S.C. 1751(a), grants authority to the Secretary to prescribe such rules and regulations as are reasonably necessary to carry out FOGRMA's provisions. While the majority of FOGRMA is directed to royalty collection and enforcement, some provisions apply to offshore operations. For example, section 108 of FOGRMA, 30 U.S.C. 1718, grants the Secretary broad authority to inspect lease sites for the purpose of determining whether there is compliance with the mineral leasing laws. Section 109(c)(2) and (d)(1), 30 U.S.C. 1719(c)(2) and (d)(1), impose substantial civil penalties for failure to permit lawful inspections and for knowing or willful preparation or submission of false, inaccurate, or misleading reports, records, or other information. Because the Secretary has delegated some of the authority under FOGRMA to BSEE, 30 U.S.C. 1751 is included as additional authority for these requirements.
The Independent Offices Appropriations Act (31 U.S.C. 9701), the Omnibus Appropriations Bill (Pub. L. 104-133, 110 Stat. 1321, April 26, 1996), and OMB Circular A-25, authorize Federal agencies to recover the full cost of services that confer special benefits. Under the Department of the Interior's implementing policy,
These authorities and responsibilities are among those delegated to BSEE. The regulations at 30 CFR 250 stipulate the various requirements that must be submitted with a Form BSEE-0124 (APM). The form and the numerous submittals that are included and/or attached to the form are the subject of this collection. This request also covers any related Notices to Lessees and Operators (NTLs) that BSEE issues to clarify, supplement, or provide additional guidance on some aspects of our regulations
Some responses are mandatory and some are required to obtain or retain a benefit. No questions of a sensitive nature are asked. BSEE will protect proprietary information according to the Freedom of Information Act (5 U.S.C. 552) and DOI's implementing regulations (43 CFR 2); 30 CFR part 250.197,
The BSEE uses the information to ensure safe well completion, workover, and decommissioning operations and to protect the human, marine, and coastal environment. Among other things, BSEE specifically uses the information to ensure: The well completion, workover, and decommissioning unit is fit for the intended purpose; equipment is maintained in a state of readiness and meets safety standards; each well completion, workover, and decommissioning crew is properly trained and able to promptly perform well-control activities at any time during well operations; and compliance with safety standards. The current regulations provide for safe and proper field or reservoir development, resource evaluation, conservation, protection of correlative rights, safety, and environmental protection. We also review well records to ascertain whether the operations have encountered hydrocarbons or H2S and to ensure that H2S detection equipment, personnel protective equipment, and training of the crew are adequate for safe operations in zones known to contain H2S and zones where the presence of H2S is unknown.
We use the information to determine the conditions of the site to avoid hazards inherent in well completions, workovers, and decommissioning operations. In addition, except for proprietary data, BSEE is required by the OCSLA to make available to the public certain information that is submitted.
The information on the APM form (BSEE-0124) is used to evaluate and approve the adequacy of the equipment, materials, and/or procedures that the lessee or operator plans to use during drilling plan modifications, changes in major drilling equipment, and plugging back. In addition, except for proprietary data, BSEE is required by the OCSLA to make available to the public certain information submitted on BSEE-0124. The information on the form is as follows:
Agencies must also estimate the non-hour paperwork cost burdens to respondents or recordkeepers resulting from the collection of information. Therefore, if you have other non-hour burden costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. For further information on this burden, refer to 5 CFR 1320.3(b)(1) and (2), or contact the Bureau representative listed previously in this notice.
We will summarize written responses to this notice and address them in our submission for OMB approval. As a result of your comments, we will make any necessary adjustments to the burden in our submission to OMB.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on August 17, 2016, under section 337 of the Tariff Act of 1930, as amended, on behalf of ResMed Corp. of San Diego, California; ResMed Inc. of San Diego, California; and ResMed Ltd. of Australia. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain sleep-disordered breathing treatment mask systems and components thereof by reason of infringement of certain claims of U.S. Patent No. 8,960,196 (“the '196 patent”) and U.S. Patent No. 9,119,931 (“the '931 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainants request that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, is 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., Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of Docket Services, U.S. International Trade Commission, telephone (202) 205-1802.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2016).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain sleep-disordered breathing treatment mask systems and components thereof by reason of infringement of one or more of claims 23-86 of the '196 patent and claims 1, 5-8, 11-14, 18-22, 25, 26, 28-31, 33-37, 40, 41, 43, 46, 48, 49, 51, 53-55, 57, 58, 60-65, 69-71, 77, and 78 of the '931 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainants are:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations will not be a party to this investigation.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
National Aeronautics and Space Administration (NASA);
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 30 calendar days from the date of this publication.
Interested persons are invited to submit written comments regarding the proposed information collection to the Office of Information and Regulatory Affairs, Office of
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Frances Teel, NASA Clearance Officer, NASA Headquarters, 300 E Street SW., JF000, Washington, DC 20546,
This collection of information supports the National Aeronautics and Space Act of 1958, as amended, to create opportunities to improve processes associated with the evaluation and selection of individuals to participate in the NASA Astronaut Candidate Selection Program. The NASA Astronaut Selection Office (ASO) located at the Lyndon B. Johnson Space Center (JSC) in Houston, Texas is responsible for selecting astronauts for the various United States Space Exploration programs. In evaluating an applicant for the Astronaut Candidate Program, it is important that the ASO have the benefit of qualitative and quantitative information and recommendations from persons who have been directly associated with the applicant over the course of their career.
This information will be used by the NASA ASO and Human Resources (HR) personnel, during the candidate selection process (approx. 2 year duration), to gain insight into the candidates' work ethic and professionalism as demonstrated in previous related employment activities. Respondents may include the astronaut candidate's previous employer(s)/direct-reporting manager, as well as co-workers and other references provided by the candidate.
Electronic and optionally by paper.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget's (OMB) approval for an existing collection of information. The information collection is entitled, NRC Form 327, “Special Nuclear Material (SNM) and Source Material (SM) Physical Inventory Summary Report;” and NUREG/BR-0096, “Instructions and Guidance for Completing Physical Inventory.”
Submit comments by November 21, 2016. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2016-0062 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2016-0062 in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing recent Postal Service filings for the Commission's consideration concerning negotiated service agreements. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's Web site (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39
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This notice will be published in the
National Science and Technology Council, Office of Science and Technology Policy.
Notice of Request for Public Comment.
The purpose of this Notice of Request for Public Comment is to solicit relevant comments that can assist in the finalization of the proposed update to the Coordinated Framework for the Regulation of Biotechnology (Coordinated Framework) to clarify the current roles and responsibilities of the EPA, FDA, and USDA consistent with the objectives described in the July 2, 2015 Memorandum issued by the Executive Office of the President.
Responses must be received by November 1, 2016 at 5:00 p.m. EDT to be considered.
You may submit information by either of the following methods (electronic is strongly preferred):
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Responses to this Request for Public Comment will not be returned. The National Science and Technology Council is under no obligation to acknowledge receipt of the information received. No requests for a bid package or solicitation will be accepted; no bid package or solicitation exists. This Request for Public Comment is issued solely for information purposes and does not constitute a solicitation.
National Science and Technology Council: Emerging Technologies Interagency Policy Coordination Committee, Office of Science and Technology Policy, Executive Office of the President, Eisenhower Executive Office Building, 1650 Pennsylvania Ave., Washington DC 20504, Phone: 202-456-4444; Melissa M. Goldstein,
While the current Federal regulatory system for biotechnology products effectively protects health and the environment, advances in science and technology have altered the product landscape in recent years. In addition, the complexity of the current regulatory system can make it difficult for the public to understand how the safety of biotechnology products is evaluated and create challenges for small and mid-sized businesses navigating the regulatory process for these products.
To address these challenges, on July 2, 2015, the Executive Office of the President (EOP) issued a memorandum (July 2015 EOP Memorandum, Ref. 1) directing the primary agencies that regulate the products of biotechnology—the U.S. Environmental Protection Agency (EPA), the U.S. Food and Drug Administration (FDA), and the U.S. Department of Agriculture (USDA)—to accomplish three tasks: (1) Update the Coordinated Framework for the Regulation of Biotechnology (51 FR 23302; June 26, 1986) (Ref. 2) by clarifying current roles and responsibilities; (2) Develop a long-term strategy to ensure that the Federal biotechnology regulatory system is equipped to efficiently assess the risks, if any, of the future products of biotechnology; and (3) Commission an expert analysis of the future landscape of biotechnology products.
In directing the agencies to accomplish these three tasks, the Administration's goal is to ensure public confidence in the regulatory system and improve the transparency, predictability, coordination, and, ultimately, efficiency of the biotechnology regulatory system.
To accomplish the tasks described in the July 2015 EOP Memorandum, EPA, FDA, USDA and EOP formed a Biotechnology Working Group, which was established under the auspices of the Emerging Technologies Interagency Policy Coordination (ETIPC) Committee. Members of this working group spent the last 14 months performing a detailed analysis of the Federal system for regulation of biotechnology products, including by reviewing more than 900 comments that were submitted in response to a Request for Information that was posted last fall and interacting with members of the public at three public meetings that were held in different regions of the country. These meetings included presentations describing agency-specific oversight of
On September 16, 2016, the Administration released the proposed update to the Coordinated Framework, available at:
With respect to the proposed update to the Coordinated Framework, the July 2015 EOP Memorandum listed four areas to be addressed:
1. Clarify which biotechnology product areas are within the authority and responsibility of each agency;
2. Clarify the roles each agency plays for different product areas, particularly for those products that fall within the scope of multiple agencies, and how those roles relate to each other in the course of a regulatory assessment;
3. Clarify a standard mechanism for communication and, as appropriate, coordination among agencies, while they perform their respective regulatory functions, and for identifying agency designees responsible for this coordination function; and
4. Clarify the mechanism and timeline for regularly reviewing, and updating as appropriate, the Coordinated Framework to minimize delays, support innovation, protect health and the environment and promote the public trust in the regulatory systems for biotechnology products.
To accomplish the first task, the proposed update to the Coordinated Framework describes the types of biotechnology product areas regulated by the various components within each primary regulatory agency (
The National Science and Technology Council requests relevant comments that can inform the finalization of the proposed update to the Coordinated Framework by clarifying the current roles and responsibilities of the EPA, FDA, and USDA consistent with the objectives described in the July 2, 2015 EOP Memorandum.
Respondents are welcome to address one or more of the following questions in regard to the proposed update to the Coordinated Framework. Respondents are asked to identify which question(s) they are addressing.
1. What additional clarification could be provided regarding which biotechnology product areas are within the statutory authority and responsibility of each agency?
2. What additional clarification could be provided regarding the roles that each agency plays for different biotechnology product areas, particularly for those product areas that fall within the responsibility of multiple agencies, and how those roles relate to each other in the course of a regulatory assessment?
3. What additional clarification could be provided regarding communication and, as appropriate, coordination among agencies, while they perform their respective regulatory functions, and for identifying agency designees responsible for this coordination function?
4. What additional clarification could be provided regarding the mechanism and timeline for regularly reviewing, and updating as appropriate, the Coordinated Framework to minimize delays, support innovation, protect health and the environment and promote the public trust in the regulatory systems for biotechnology products?
These references are available electronically at
On July 15, 2016, The Options Clearing Corporation (“OCC”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change SR-OCC-2016-002 pursuant to Section 19(b)(1) of the Securities and Exchange Act of 1934 (“Act”)
OCC is amending its Certificate of Incorporation, By-Laws, and Board of Directors (“Board”) Charter to require that only one Management Director serve on OCC's Board (as opposed to the current requirement of two Management Directors). Moreover, OCC is proposing to amend its By-Laws and Rules to delete all references to the title and responsibilities of the Management Vice Chairman. In addition, OCC is amending its By-Laws to: (i) Provide that the Compensation and Performance Committee (“CPC”)
According to OCC, the amendments to the Board and Committee Charters are designed, in general, to provide more clarity and transparency around the oversight functions and responsibilities of the Board and each of its Committees and provide for a more comprehensive and robust oversight framework for the financial reporting, audit and compliance, compensation and performance, governance and nomination, risk, and technology functions at OCC.
The amendments to OCC's Certificate of Incorporation, By-Laws, Rules, Board and Committee Charters, and Amended and Restated Stockholders Agreement are described in detail below.
All capitalized terms not defined herein have the same meaning as set forth in the OCC By-Laws and Rules.
OCC is amending its Certificate of Incorporation to state that the number of Management Directors serving on OCC's Board shall be such number as shall be fixed by or pursuant to OCC's By-Laws.
OCC is also making conforming changes to Article III, Sections 10 (Resignations) and 12 (Filling of Vacancies and Newly Created Directorships) of the By-Laws to reflect that only one Management Director, the Executive Chairman, will be serving on OCC's Board.
Consistent with the amendments to the Certificate of Incorporation, described above, OCC is amending Article III, Section 1 of its By-Laws to state that only one Management Director will serve on OCC's Board (as opposed to the current requirement of two). As noted above, OCC's Board continually evaluates the leadership structure at OCC, including the appropriate number of Management Directors for OCC's Board, and believes that amending the Board composition to require one Management Director on OCC's Board will continue to provide an appropriate level of management representation in the Board-level oversight of OCC. OCC is also making conforming changes to Article III, Sections 10 (Resignations) and 12 (Filling of Vacancies and Newly Created Directorships) of the By-Laws to reflect that only one Management Director, the Executive Chairman, would be serving on OCC's Board.
OCC is amending its By-Laws and Rules to eliminate the role of Management Vice Chairman. The office of Management Vice Chairman has been vacant for a number of years and has not been included in the Board's current discussions regarding management succession planning. During that time, OCC's thought process surrounding leadership roles at OCC has evolved. OCC believes that any of the responsibilities of the Management Vice Chairman have been appropriately handled by other officers of OCC, primarily the Executive Chairman and President (or where applicable, other officers such as the Secretary or Directors such as the Member Vice Chairman)
In particular, OCC is amending (i) By-Laws Article I.A.(13); Article II, Section 4; Article III, Section 15; Article IV; Article V, Sections 1 and 3; Article VI, Section 17; Article VIII, Section 5; Article IX, Sections 12 and 14 and (ii) Rules 305, 309, 309A, 505, 609A, 801, 804, 805, 901, 903, 1104, 1106, 1309, 1402, 1405, 1604, 1610, 2104, 2110, and 2408 to remove all references to and responsibilities of the role of Management Vice Chairman.
OCC is amending Article III of its By-Laws to provide descriptions of the AC, CPC, GNC, RC, and TC in a single section of the By-Laws. Specifically, OCC is amending its By-Laws to consolidate existing Article III, Section 4 (which concerns the GNC) and existing Article III, Section 9 (which concerns the RC,
In addition, OCC will make a non-substantive drafting clarification to existing language being relocated from Article III, Section 9 to the introductory section of Article III, Section 4 to clarify that the Board is required to designate persons to serve on the specifically enumerated Committees therein.
The amended By-Laws description of the AC will reflect existing requirements in the AC and GNC Charters that, on an annual basis, the Board of Directors shall appoint an AC selected from among the directors recommended by the then-constituted GNC after consultation with the Executive Chairman and shall serve at the pleasure of the Board, provided that no Management Director may serve on the AC. The description of the AC will also include a new requirement that the chairman of the AC shall be designated by the Board from among the Public Director member(s) of the Committee (as described further below).
The description of the CPC will reflect the existing requirement that, on an annual basis, the Board of Directors shall appoint a CPC and that the CPC generally consists of the Executive Chairman, the Member Vice Chairman, and at least one Public Director.
OCC is amending Article IV, Section 1 of the By-Laws to provide that the Board will elect the Executive Chairman and Vice Chairman of the Board upon the nomination of the GNC and also elect the President of OCC (in addition to the Secretary and Treasurer). In addition, OCC is amending Article IV, Section 7 to delete a requirement that the Member Vice Chairman preside at the meetings of any Committee of the Board of Directors charged with the responsibility for evaluating the performance and compensation of officers as the CPC will now be chaired by a Public Director. In addition, OCC will make amendments to clarify that the Member Vice Chairman will preside over meetings of the Board and stockholders in the absence of the Executive Chairman because the President cannot preside over meetings of the Board.
In addition to the changes described above, OCC will also change the Board Committee descriptions in proposed Article III, Sections 4(a) and (b) of the By-Laws to reflect the requirement that a Public Director
Additionally, the GNC reviewed proposed regulatory standards for audit committees of self-regulatory organizations that will require such audit committees to be independent based on facts determined by a given self-regulatory organization's board of directors. Such review caused the GNC to recommend to the Board that a Public Director should be required to chair the AC in order to align with governance best practices for audit committees and to support the objectivity of the AC. The Board agreed with the GNC's recommendation. Moreover, and in furtherance of the goal of AC independence, any currently serving Management Director(s) will not be eligible to serve on the AC.
OCC is amending Article III of its By-Laws to modify the composition requirements of OCC's RC. Existing Article III, Section 9 of OCC's By-Laws currently requires that the RC shall consist of the Executive Chairman, the Member Vice Chairman, at least three other Member Directors selected on a basis that shall not discriminate against any Exchange, and one or more Public Directors. OCC is replacing this description of the RC with new Article III, Section 4(d), which will modify the RC composition requirements to (i) provide that an Exchange Director
The GNC reviewed the membership composition of the RC and determined that one Exchange Director should be a member of the RC. Historically, the RC did not include Exchange Directors because Member Directors were much more directly concerned with the risk management and membership function of OCC due to the mutualization of risk among Clearing Members as well as the fact that Clearing Members are responsible for the contribution of margin and clearing fund deposits. Given the evolution of the markets for which OCC provides clearance and settlement services, OCC now believes that an Exchange Director should be a member of the RC. OCC believes that Exchange Directors have expertise and unique perspective on matters such as market risk as well as sophistication as to special risks arising from trading practices, strategies and new products.
In addition, the GNC recommended, and the Board approved, a reduction in the minimum composition requirement for Member Directors on the RC to allow for greater flexibility in the selection of Directors with the requisite skills and expertise to serve on the RC. OCC believes that Member Director participation on the RC is vital and will continue to require that at least one Member Director serves on the RC. OCC also believes, however, that it is necessary and appropriate to maintain flexibility to ensure that the RC comprises those Directors that have the appropriate mix of knowledge and expertise necessary to provide for the prudent oversight of risk matters at OCC.
OCC is amending Article III, Sections 5 and 6A; Article IV, Section 1; and adopting Amendment No. 1 to Amended and Restated Stockholders Agreement to provide for Board action in the nomination process for Member Directors, Public Directors, the Executive Chairman, and Member Vice Chairman in conformance with the process set forth in the GNC Charter.
OCC is amending Article III, Section 6A of its By-Laws, Section IV.1. of the GNC Charter, and Section II.D. of the Board Charter to remove term limits for Public Directors. OCC believes it is appropriate to eliminate term limits for Public Directors because the learning curve for directors of OCC is significant. OCC also believes that it often takes several years for directors who come from outside the industry to achieve the particularized degree of knowledge and understanding about the business that is necessary to provide significant value. Additionally, the GNC reviewed OCC's term limit policy for Public Directors in light of benchmark data and governance trends and determined that the elimination of term limits for Public Directors is consistent with governance arrangements at large corporations. Therefore, OCC is proposing to remove its term limits for Public Directors in the interest of assuring that OCC has access to the full benefit of a Public Director's understanding and learning, with respect to OCC and the markets OCC serves, as it develops over time.
OCC represents that its amendments to the Board Charter are intended to: (i) Harmonize the description of the Board's obligations in the Board Charter with the description of the Board's obligations in OCC's By-Laws and Rules; (ii) better align the Board Charter with the Board's Corporate Governance Principles and By-Laws; (iii) reflect recent changes involving Board Committee Charters; (iv) in general, restate the Board's oversight responsibilities in a manner designed to provide for prudent governance arrangements in light of OCC's role as a systemically important financial market utility; and (v) make certain non-substantive administrative changes to the Charter.
OCC is amending Section II of the Board Charter regarding membership and organization requirements to reflect the elimination of the role of Management Vice Chairman as described above. As a result, in the event that the Executive Chairman is absent or disabled, the Member Vice Chairman shall preside over meetings of the Board. OCC is also making amendments that will allow for additional meetings of the Board being called as the Board deems appropriate (such meetings shall be called by the Executive Chairman or his designee) and that specify that the Executive Chairman shall consult with the Corporate Secretary (in addition to other directors or officers) when establishing Board meeting agendas.
OCC is also making amendments intended to strengthen the Board's governance framework and practices surrounding meetings in executive
In addition, OCC is also amending the Board Charter to state that the Board comprises one Management Director, rather than two Management Directors, in conformance with the proposed Certificate of Incorporation and By-Laws changes described above. OCC is also amending the Board Charter to reflect an increase in the number of Public Directors serving on the Board from three to five.
To achieve a balanced representation on the Board among Member Directors, OCC is amending the Board Charter to state that the considerations involved in determining the nomination of Member Directors should include the volume of business transacted with OCC during the prior year and the mix of Member Directors that are primarily engaged in agency trading on behalf of retail customers or individual investors. OCC believes that the amendments reinforce the existing requirement in Article III, Section 5 of OCC's By-Laws that the GNC shall endeavor to achieve balanced representation among Clearing Members on the Board of Directors to assure that: (i) Not all Member Directors are representatives of the largest Clearing Member Organizations based on the prior year's volume, and (ii) the mix of Member Directors includes representatives of Clearing Member Organizations that are primarily engaged in agency trading on behalf of retail customers or individual investors. OCC is removing geographic location of Clearing Members as a factor for consideration because OCC believes that location is no longer a significant consideration given modern technology and the evolution of the industry. OCC is also adding language to the Board Charter (as well as the Committee Charters) to discourage Directors from attending meetings of the Board by telephone as currently provided in the Code of Conduct for OCC Directors. Attendance by telephone will be generally discouraged because OCC believes the Board may be less likely to have the kind of interaction that leads to fully informed discussions and decisions than if Board members were to meet in person.
OCC is making amendments to the Board Charter that are primarily intended to: (i) Harmonize the description of the Board's obligations in the Board Charter with the description of the Board's obligations in OCC's By-Laws and Rules as well as the Board's Corporate Governance Principles
In cases when an obligation of the Board is expressed in both the Board Charter and OCC's By-Laws and Rules, OCC is will remove the obligation from the Board Charter. OCC will replace these charter provisions with a general statement that the Board will perform those functions as the Board believes appropriate or necessary, or as otherwise prescribed by rule or regulation, including OCC's By-Laws and Rules.
OCC is also making amendments to Section IV of the Board Charter designed to provide for prudent governance arrangements emphasizing that the Board's oversight role should operate in a manner consistent with its responsibilities as a designated systemically important financial market utility. Specifically, OCC is amending the Charter to state that the responsibilities of the Board include: (i) Overseeing management's activities in managing, operating and developing OCC and evaluating OCC management's performance in executing its responsibilities; (ii) selecting, overseeing and, where appropriate, replacing the Executive Chairman of the Board and the President, providing counsel and advice to the Executive Chairman and the President as well as oversight of the performance of each such officer and of OCC in order to evaluate whether the business is being appropriately managed; (iii) setting expectations about the tone and ethical culture of OCC, and reviewing management's efforts to instill an appropriate tone and culture throughout OCC; (iv) providing oversight of risk assessment and risk management monitoring processes, including with respect to systemic risk and reviewing risk tolerances submitted to the Board for approval by its Risk Committee; (v) performing an annual self-evaluation of its performance, the performance of its Committees, the performance of individual directors and Committee members; and evaluating the Corporate Governance Principles and Fitness Standards; (vi) reviewing the amount of compensation for the Board's Public Directors (
In addition, OCC is modifying certain existing Board Charter provisions related to the responsibilities of the Board. Specifically, OCC is making amendments that will specify that, in
OCC is also making non-substantive organizational changes in Section IV of the Board Charter. Specifically, OCC will combine provisions related to the Board's responsibilities for approving and overseeing OCC's business strategies and monitoring OCC's performance of clearance and settlement services.
In addition to the changes described above, OCC meant certain of the amendments to the Board Charter to address non-substantive, administrative issues. For example, certain amendments are being proposed to Section III of the Board Charter to reflect the adoption of the TC the GNC, and renaming of the Performance Committee to the CPC, as described herein. In addition, OCC is also amending Section I of the Board Charter to more accurately state that the Board is responsible for providing direction to and overseeing the conduct of the affairs of OCC (as opposed to just managing the business and affairs) and to remove an unnecessarily specific list of OCC stakeholders. OCC is also making amendments to require an annual (as opposed to the less specific “periodic”) review of the Board Charter, including the Corporate Governance Principles and Fitness Standards.
OCC is also amending the Fitness Standards to remove descriptions of the categories of directors represented on the Board and the process by which they are nominated for Board service as these descriptions are already maintained in Article III of OCC's By-Laws and the relevant Committee Charters. Eliminating these redundant descriptions in the Fitness Standards will promote efficiency and clarity by eliminating the need to ensure consistency of the same information across multiple documents. OCC believes that the amendments will underscore that the Fitness Standards are intended to facilitate the performance of OCC's role as a systemically important financial market utility.
OCC is making conforming amendments to the Committee Charters as a result of the Commission approving certain changes to the GNC Charter. Specifically, OCC is amending each Committee Charter to confirm that each Board Committee has access to all books, records, facilities and personnel of OCC in carrying out the respective Board Committee's purpose and responsibilities. OCC stated that this amendment to the Committee Charters will make explicit a longstanding principle under which each Committee has operated. Additionally, references to the “Governance Committee” in each Committee Charter will be changed to the “Governance and Nominating Committee” to reflect the formation of the GNC.
Furthermore, OCC will delete a provision from each Committee Charter that grants the Chair of each Board Committee the authority to act on behalf of the respective Board Committee in situations in which immediate action is required and convening a Board Committee meeting is impractical. Although this provision also requires each Chair to report such actions to the respective Board Committee for ratification as soon as practicable, OCC believes that removing this provision is appropriate from a governance perspective because it supports deliberation and action by a Board Committee as a whole rather than action by a Chair. In addition, OCC represented that, historically, each Board Committee has been able to convene when necessary.
OCC is changing each Committee Charter to strengthen OCC's Board Committee governance framework and practices surrounding meetings in executive sessions by providing added structure regarding the convening and attendance of executive sessions and promoting the enhanced recordation of important meeting events and discussions. Specifically, each Committee Charter will be amended to: (i) Require that each Committee meet in executive session at each regular meeting of the Committee; (ii) allow the Committee to determine who will participate in such sessions; and (iii) provide for the exclusion of management, invited guests, and individual directors from executive sessions where discussions may involve certain sensitive matters or conflicts of interest. The amendments will also require that each Committee's meeting minutes reflect, at least in summary fashion, the general matters discussed in an executive session. In particular, the Chair (or Acting Chair) will determine whether separate minutes of the executive sessions are to be recorded as well as the level of detail to be included in such minutes, provided that Committee meeting minutes must, at a minimum, reflect that an executive session was convened and broadly describe the topic(s) discussed.
Additionally, the Committee Charters will be amended to permit any Board Committee to engage specialists or advisors to assist it in carrying out its delegated responsibilities without prior Board approval. Generally speaking, Committees must obtain pre-approval from the Board to hire advisors. OCC's understanding is that public company board committees frequently are authorized to engage advisors without board pre-approval at the company's expense to preserve autonomy and independence and to assist them in the execution of their responsibilities as deemed necessary. Under the amended charters, each Committee's engagement of an advisor, including fees and expenses, will be referenced in its annual report to the Board. OCC intends these amendments to foster Committee independence as well as timely Committee access to expertise relevant to the discharge of its delegated responsibilities while preserving Board
OCC is also amending its Committee Charters to specify that each Committee should evaluate its own and its individual members' performances on an annual basis (as opposed to regularly) to provide more clarity and specificity regarding the timing of each Committee's self-assessment process.
OCC is making amendments to the AC Charter intended to, among other things: (i) Reinforce the independence of the AC; (ii) more accurately memorialize and expand upon the activities of the AC with respect to the oversight of OCC's financial reporting processes and enhance the independence and objectivity in connection therewith; and (iii) in general, provide more explicit descriptions of the AC's functions and responsibilities.
OCC is changing Sections I, II and III of the AC Charter related to the purpose, membership and organization, and authority of the AC. In Section I of the AC Charter, OCC is making organizational changes to certain statements regarding the AC's responsibility to serve as an independent and objective party to oversee OCC's system of internal control, compliance environment and processes. OCC stated that these changes are non-substantive in nature. OCC is also making various textual clarifications, which OCC believes are non-substantive, in Section I, including, for example, replacing the term “independent accountants” with “external auditors” and replacing “Corporation” with “OCC,” which will extend throughout the entire AC Charter. OCC does not intend for the amendments to change the term “independent accountants” to “external auditors” to signify a change in roles or responsibilities.
OCC is also amending Section II of the AC Charter to reinforce the independence of the AC. Specifically, the amendments provide that all members of the AC be independent from OCC's management, as determined by the Board from time to time, and that the Chair of the AC be a Public Director.
OCC is also amending the AC Charter to provide that the AC shall make such reports to the Board as deemed necessary or advisable for the purpose of promoting effective communication between the AC and the Board, in line with requirements in other Committee Charters.
OCC is amending Section III of the AC Charter to confirm that the AC's authority to hire advisors includes the authority to approve the related fee and retention terms
OCC is also making a number of amendments to Section IV of the AC Charter intended to reinforce and expand upon the activities of the AC with respect to the oversight of OCC's financial reporting processes, to enhance the independence and objectivity in connection therewith, and to more explicitly describe the AC's functions and responsibilities.
OCC is amending the AC Charter regarding the AC's oversight of financial reporting and external auditors. OCC intends the amendments to the AC Charter to more accurately memorialize and expand upon the AC's role with respect to financial reporting at OCC. With respect to financial statements and financial reporting, the amendments state that the AC is responsible for: (i) Discussing with management and external auditors OCC's audited and unaudited financial statements; (ii) upon management's recommendation, approving OCC's financial statements after reviewing with management and external auditors prior to issuance;
Additionally, to improve the AC's oversight and evaluation of external auditors, OCC is amending the AC Charter to require the AC to: (i) Discuss with management the timing and process for implementing a rotation of the engagement partner of the external auditor and any other active audit engagement team partner; (ii) monitor and evaluate the qualifications of both the external auditor and engagement partner; (iii) consider whether there
OCC is amending Section IV of the AC Charter in order to more clearly articulate the AC's responsibility for the oversight of Internal Audit. Specifically, OCC is making amendments stating that the AC's responsibilities include reviewing and approving the Internal Audit Policy on an annual basis and monitoring ongoing internal audit activities. OCC is also making amendments stating that the AC is responsible for approving OCC's annual internal audit plan and approving any CAE recommendations for removing or deferring any audits from a previously approved internal audit plan to explicitly codify these existing AC practices in the AC Charter. OCC believes that the AC, which serves as an independent and objective party tasked with the oversight of OCC's system of internal control, auditing, accounting, and compliance processes, is the appropriate body to approve OCC's internal audit plan and any CAE recommendations for removing or deferring any audits from a previously approved internal audit plan. OCC believes that the amendments will provide more clarity and transparency regarding OCC's governance arrangements by codifying these responsibilities found in the AC Charter.
OCC is also amending to Section IV of the Charter to more clearly articulate the AC's responsibility for oversight of compliance and compliance-related matters, including: (i) Annually reviewing and approving OCC's Compliance Policy and employee Code of Conduct; (ii) reviewing and approving the Compliance Department's process for establishing the risk-based annual Compliance Testing Plan, monitoring progress against the annual Compliance Testing Plan, and approving changes to the Compliance Testing Plan recommend by the CCO; and (iii) monitoring ongoing compliance activities by reviewing reports and other communications prepared by the Compliance Department, including updates from the CCO, and inquiring of management regarding steps taken to address items raised.
In addition, OCC is clarifying the AC's responsibilities with respect to: (i) Reviewing on a regular basis the significant deficiencies and material weaknesses in the design or operation of OCC's internal controls (as such issues are identified by or presented to the AC); (ii) reviewing fraud involving OCC's management or other employees; and (iii) reviewing and approving (as opposed to just establishing) OCC's “whistleblower” procedures that govern reporting of illegal or unethical conduct, accounting irregularities and similar matters and discussing any substantive issues identified through such procedures with relevant parties.
OCC is amending Section IV of the AC Charter to provide that the CAE and CCO will each report functionally to the AC and administratively to the Executive Chairman.
OCC is changing its CPC Charter to explicitly describe the Committee's functions and responsibilities with respect to OCC's human resources, compensation and employee benefit programs, and insurance programs. The amendments will also provide for CPC oversight of OCC's Capital Plan in recognition of the importance of providing for Board-level oversight to ensure OCC's capital and Capital Plan meet or exceed minimum regulatory standards.
OCC is renaming the Performance Committee to the CPC to reflect its role more accurately. OCC is also amending Section I of the CPC Charter to articulate that the CPC is tasked with assisting the Board in the oversight of OCC's overall performance in promptly and accurately delivering clearance, settlement and other designated industry services and in the accomplishment of other periodically-established corporate goals and objectives in light of OCC's systemically important status. The CPC Charter will further delineate that the CPC is tasked with (i) recommending the compensation of OCC's Executive Chairman and President and approving the compensation of certain other officers, as appropriate; (ii) overseeing OCC's Capital Plan and financial performance; (iii) overseeing OCC's Human Resources program; (iv) overseeing the structure and design of the employee compensation, incentive and benefit programs; and (v) assisting the Board in reviewing OCC's leadership development and succession planning.
Additionally, OCC is amending Section II of the CPC Charter related to the membership and organization of the CPC to conform the CPC Charter to proposed Article III, Section 4(b) of OCC's By-Laws to state that the Chair of the CPC shall be a Public Director. In addition, OCC is changing Section II of the CPC Charter to elaborate on the CPC's responsibility to discuss and review the performance and compensation levels (including benefits and perquisites such as sign-on bonuses, retention arrangements, relocation arrangements and other financial commitments of OCC) of members of the Management Committee and certain other key officers, as appropriate.
OCC is also amending Section II to clarify that the CPC will meet at least four times per year, which reflects the minimum number of regular meetings in a year in a manner consistent with the charters of other Board Committees, and to delete a provision of the CPC Charter that requires the CPC Chair to meet in private session with the GNC Chair to discuss performance of key officers as well as a provision stating that the Chairs of the AC and RC will be invited to attend the annual meeting to discuss compensation of key officers, including the Chief Risk Officer (“CRO”) and CAE.
OCC is also amending the CPC Charter to discourage attendance at a CPC meeting by telephone because OCC believes the Committee may be less likely to have the kind of interaction that leads to fully informed discussions and decisions than if Committee members were to meet in person. In addition, other clarifying and textual changes will be made including, for the reasons stated above, removal of references to the Management Vice Chairman.
Additionally, OCC will make organizational changes in Section III regarding the delegation of authority to the Administrative Committee that do not change the meaning of the rule text.
OCC is amending Section IV of the CPC Charter to explicitly describe the Committee's responsibilities with respect to OCC's capital structure, financial planning and corporate goals and objectives; human resources and compensation programs; and employee benefits programs in order to provide a more robust framework for the CPC's oversight functions. Additionally, OCC will remove explicit requirements in Section IV that the CPC review the Corporate Plan and Budget and OCC's performance under the Corporate Plan at each regularly scheduled meeting in favor of more general descriptions regarding the CPC's responsibilities for the oversight of the corporate financial planning process, including the corporate budget, and corporate goals and objectives. OCC intends the amendments to accommodate CPC review of annual Corporate Plans and Budgets and performance thereunder (as currently contemplated by the CPC Charter) as well as consideration of longer-term horizons and implications in the strategic planning process.
OCC is amending Section IV of the CPC Charter to explicitly provide for the CPC's responsibilities in connection with overseeing OCC's capital structure, financial planning, and corporate goals and objectives. Specifically, the amendments will state that the CPC's responsibilities include oversight of management's processes for determining, monitoring and evaluating OCC's Capital Plan,
OCC is amending Section IV of the CPC Charter to explicitly state that the CPC's responsibilities include review of OCC's Human Resources programs and policies, including OCC's talent acquisition, performance management, training, benefits and succession planning processes and review and approval of the structure, design, and funding as applicable, of employee compensation, incentive and benefit programs. OCC believes that this amendment will ensure that Board Committee oversight for management's processes for hiring, retaining and developing qualified staff and is consistent with the CPC's oversight of overall succession planning processes. Additionally, OCC is amending the CPC Charter to clarify that the CPC annually reviews and approves the goals and objectives of the Executive Chairman and President.
Further, OCC is making amendments to the CPC Charter that will require the CPC to periodically (not less than annually) review and approve the general strategy, policies and programs with respect to salary compensation (including management compensation) and incentive compensation and seek to ensure compensation policies meet evolving compensation practices so that such policies remain effective to attract, motivate and retain executive officers and other key personnel. The amendments will also require the CPC to review and approve the performance and compensation of key employees, such as members of OCC's Management Committee, at the end of each year and to make recommendations to the Board regarding the compensation of the Executive Chairman and the President. Additionally the amendments will require the CPC to review proposed material changes to executive management benefits and to periodically review the compensation of Public Directors and make recommendations to the Board with respect thereto.
OCC is amending the CPC Charter to remove certain statements regarding the review of OCC's performance under the Corporate Plan and the oversight of the administration of OCC's compensation plans as these responsibilities will be covered under the amended descriptions contained therein. OCC believes that it is prudent and appropriate to provide for CPC oversight in the areas of human resources, performance, and compensation and that the amendments will enhance OCC's overall governance arrangements with respect to the oversight and review of performance and compensation at OCC.
OCC is also making amendments to Section IV of the CPC Charter related to the CPC's oversight responsibilities for employee benefit programs. Specifically, OCC is amending the CPC Charter to specify the CPC's responsibilities for oversight, administration, and operation of employee benefit, retiree and welfare benefit plans, including the review of funding plan obligations. The amendments will also specify the scope of employee welfare plans that the CPC reviews and the CPC's right to adopt new compensation, retirement and welfare benefit plans or to terminate existing plans other than such plans that require Board action to amend or terminate. In addition, the amendments will provide more clarity regarding the CPC's responsibilities for monitoring the Administrative Committee's duties in connection with retirement and retirement savings plans, investment strategy and performance, plan design and compliance, prudent selection of investment managers and compensation and benefits consultants, and
OCC is making further amendments that state that the CPC is responsible for providing updates to the Board periodically regarding: (i) Actions taken by the CPC with respect to its review of OCC's compensation, retirement and employee welfare plans; (ii) the financial position and performance of these plans; and (iii) adherence to investment guidelines, in each case, where applicable.
OCC is amending its RC Charter primarily to enhance OCC's governance arrangements with respect to the RC's oversight functions and responsibilities. OCC is also making amendments to better align the RC Charter with the OCC By-Laws, including changes in the composition requirements of the RC (as described above) and to reflect the adoption of the TC.
OCC is amending Section I of the RC Charter to provide that the RC will be responsible for coordinating risk oversight with other Board Committees tasked with overseeing certain risks (
OCC is amending Section II of the RC Charter to provide that attendance at a RC meeting by telephone is discouraged because OCC believes the Committee may be less likely to have the kind of interaction that leads to fully informed discussions and decisions than if Committee members were to meet in person. OCC is also removing from the RC Charter, and by extension its rules, a requirement that a RC member shall recuse himself from any matter in which his firm has an interest, other than a common interest shared with Clearing Members generally or a particular class of Clearing Members. Currently, none of the Committee Charters, other than the RC Charter, contain a such recusal provision.
With respect to RC meetings, OCC is amending the RC Charter to state that the RC shall meet regularly, and no less than once annually, (rather than “at least annually”) with the CRO and members of management (as opposed to other appropriate corporate officers) in separate executive sessions to discuss certain private matters. OCC stated that the purpose of the change is to signify that these meetings occur more frequently than once per year. The changes will also specifically require that the RC meet in executive session regularly with members of management. The RC will continue to have the discretion to invite any other officers it deems appropriate to meetings in executive session pursuant to the common charter amendments described above. Moreover, and in order to enhance the independence and functional reporting relationship of the CRO to the RC, OCC will make revisions to explicitly state that the CRO is authorized to communicate with the RC Chair outside of regular meetings. OCC is also amending the RC composition requirements in Section II to conform to the By-Law changes discussed above. Specifically, the RC Charter will be revised to state that the RC shall consist of the Executive Chairman, at least one Exchange Director, at least one Member Director, and at least one Public Director. OCC is also amending Section II to require that the RC meet at least six times a year (as opposed to seven) in recognition of the fact that the time allotted for each individual RC meeting has been expanded. Furthermore, OCC is amending Section II of the RC Charter to state that, unless a Chair is elected by the full Board, the members of the RC shall designate a Chair by majority vote. OCC stated that this amendment is in conformance with OCC's current practices for electing Committee Chairs and as described in other Committee Charters.
OCC is also amending Section III of the RC Charter to provide that, in addition to RC subcommittees, the RC may also delegate authority to OCC's Management Committee or Enterprise Risk Management Committee. As described herein, the RC is responsible for assisting the Board in overseeing OCC's policies and processes for identifying and addressing strategic, operational, and financial risks and for overseeing the overall enterprise risk management framework implemented by management. The amendment will allow the RC to delegate authority to the Management Committee and Enterprise Risk Management Committee to carry out certain tasks and responsibilities in the day-to-day risk management of OCC and to implement proposals that the RC has approved in concept where the RC deems such delegation of authority to be appropriate.
OCC is amending Section IV of the RC Charter to enhance its governance arrangements in connection with the oversight of membership requirements, margin requirements, the Enterprise Risk Management Program, and a number of other responsibilities.
OCC is amending the RC Charter to provide a broader description of the RC's oversight of the adequacy and effectiveness of OCC's framework for clearing membership. OCC stated that, in general, these changes are not intended to substantively change or eliminate any of the RC's existing responsibilities with respect to its oversight of OCC's clearing membership framework and will continue to encompass the responsibilities currently enumerated in the charter.
In addition, OCC is modifying certain provisions related to the surveillance of Clearing Members and contingency planning for Clearing Member failures. Specifically, OCC will consolidate these provisions to restate that the RC is responsible for the oversight of the adequacy and effectiveness of OCC's contingency plan for Clearing Member failures, including: (i) Reviewing Clearing Member surveillance criteria; (ii) overseeing the management processes for managing Clearing Members that are subject to closer than normal surveillance or are otherwise in or approaching financial or operational difficulty; (iii) imposing and modifying restrictions and requirements already imposed on Clearing Members in a manner consistent with the By-Laws and Rules;
OCC is making similar amendments to the RC Charter to restate the RC's responsibilities in connection with its oversight of margin and clearing fund requirements. OCC will remove certain existing provisions related to the oversight of margin and clearing fund requirements and replace them with a more high level description that will provide that the RC oversees OCC's processes for establishing, monitoring and adjusting margin consistent with the protection of OCC, Clearing Members, or the general public, including: (i) Reviewing and modifying OCC's margin formula, the methodologies used for determining margin and clearing fund requirements, and making recommendations to the Board, as applicable, in respect thereof;
OCC is also deleting a provision stating that the RC is responsible for making determinations regarding approval of non-U.S. institutions to issue letters of credit as a form of margin asset because this provision does not accurately reflect the RC's responsibilities. While the RC is responsible for overseeing standards used to admit non-U.S. institutions, OCC's President and Executive Chairman have general responsibility for approving financial institutions seeking to become non-U.S. letter of credit banks and that meet the requirements of OCC Rule 604, Interpretation and Policy .01 (with the exception of certain “equivalent country” and “equivalent institution” determinations that are required to be made by the RC pursuant to OCC Rule 604, Interpretations and Policies .01(b)(3) and .01(b)(4)(b)).
OCC is making amendments to restate and expand upon the RC's responsibility for overseeing OCC's Enterprise Risk Management program. Currently, the RC is responsible for overseeing the structure, staffing and resources of the Enterprise Risk Management program, reviewing periodic reports regarding the Enterprise Risk Management program, and annually reviewing and assessing the overall program. OCC is amending the RC Charter to restate these existing responsibilities and add new responsibilities designed to enhance the risk oversight framework for the Enterprise Risk Management program. Specifically, the amendments will state that the RC is responsible for overseeing OCC's Enterprise Risk Management program, including (in addition to the existing responsibilities noted above), reviewing the systems and procedures that management has developed to manage the risks to OCC's business operations and regularly discussing these systems and procedures with management, reviewing with management the interrelated nature of OCC's risks, and annually approving the Enterprise Risk Management program's goals and objectives. OCC believes that explicitly incorporating these responsibilities into the RC Charter will provide for a more comprehensive oversight framework for the Enterprise Risk Management program.
OCC is also making amendments to restate and expand upon the RC's responsibility for the oversight of OCC's risk appetite and risk tolerances. Currently, the RC Charter provides that the RC is responsible for reviewing and recommending for Board approval the OCC Risk Appetite Statement and reviewing and monitoring OCC's risk profile for consistency with OCC's Risk Appetite Statement. The amendments to the RC Charter will state that, in addition to these responsibilities, the RC will be responsible for reviewing and monitoring determinations regarding appropriate risk tolerances, including reviewing with management on a regular basis management's view of appropriate risk tolerances and assessing whether this view is appropriate, and recommending risk
Section I of the RC Charter currently provides that the RC is responsible for the oversight and review of material policies and processes relating to member and other counterparty risk exposure assessments. OCC is amending Section IV to further specify that the RC oversees the adequacy and effectiveness of OCC's processes for setting, monitoring and acting on risk exposures to OCC presented by banks, depositories, financial market utilities and trade sources. OCC believes that the oversight of such risk exposures is critical to ensuring the safety and soundness of OCC and that specifically including this responsibility in the RC Charter will provide for greater clarity and transparency regarding the RC's role in overseeing these risks. Section I of the RC Charter also currently provides that the RC is responsible for the oversight and review of material policies and processes (i) for identifying liquidity risks and (ii) relating to liquidity requirements and the maintenance of financial resources. The amendments to Section IV will further specify that the RC oversees the processes established by OCC for setting, monitoring and managing liquidity needs necessary for OCC to perform its obligations as a systemically important financial market utility. OCC believes that comprehensive oversight of liquidity risks and liquidity risk management is critical to ensuring the safety, soundness, and resilience of OCC and that providing more specificity regarding the RC's responsibilities with respect to liquidity risk will provide for greater clarity and transparency regarding the RC's role in such oversight. In addition, OCC is amending the RC Charter to provide that the RC and management discuss, on a regular basis, the impact on systemic stability that may arise as a result of OCC's actions in responding to an extraordinary market event, including the impending or actual failure of a Clearing Member, and the development of strategies to mitigate these effects. OCC believes it is prudent for management and the RC to engage in regular discussions concerning OCC's actions in extreme market events and the potential impacts on systemic stability given OCC's role as a systemically important financial market utility.
OCC will also elaborate on the statement that the RC will perform the responsibilities delegated to it by the Board under OCC's By-Laws and Rules by specifying that this will include the authorization of the filing of regulatory submissions pursuant to such delegation. Additionally, OCC is making amendments to state that the RC will oversee management's responsibility for handling financial (
Further, the amendments will specify that the RC oversees OCC's model risk management process, policies and controls, including: (i) Overseeing model risk governance; (ii) reviewing the findings of any third party engaged by management to evaluate OCC's risk models; and (iii) annually reviewing and approving the Model Validation Plan and receiving periodic reports thereunder. Moreover, the amendments provide that the RC is responsible for reviewing the results of any audits (internal and external), regulatory examinations and supervisory examination reports as to significant risk items or any other matter relating to the areas that the RC oversees, as well as management's responses pertaining to matters that are subject to the oversight of the RC.
Consistent with the GNC Charter and AC Charter, OCC is amending the RC Charter to eliminate provisions under which the RC Chair attends the year-end CPC meeting to discuss the performance and compensation levels of the CRO. Rather, the RC, in consultation with the Executive Chairman, will review the performance of the Enterprise Risk Management and Model Validation programs as well as the CRO and determine whether to accept or modify the Executive Chairman's recommendations with respect to the performance assessment and annual compensation for the CRO.
Further, the amendments will confirm that the RC has the responsibility for ratifying, modifying, or reversing action taken by OCC officers that have been delegated authority to consider requests by Clearing Members to expand clearing activities to include additional account types and/or products. Moreover, OCC is amending the RC Charter to clarify that the RC has the authority to authorize the filing of a regulatory submission pursuant to authority delegated to it by the Board.
OCC is amending the GNC Charter to reflect the elimination of term limits for Public Directors as discussed above and to state that attendance of GNC meetings by telephone is discouraged because OCC believes the Committee may be less likely to have the kind of interaction that leads to fully informed discussions and decisions than if Committee members were to meet in person. OCC will also delete a provision stating that a designated officer of management shall serve to assist the Committee and act as a liaison between staff and the Committee because OCC believes based on its experience that designating a formal role for a liaison was unnecessary. Deleting this requirement will also maintain uniformity across all Committee Charters, as no other Committee has a formally designated liaison.
OCC is also amending the GNC Charter to specify that the Chair (or the Chair's designee) shall consult with the Corporate Secretary, in addition to management, to prepare an agenda in advance of each GNC meeting as the Corporate Secretary is responsible for coordinating the preparation and distribution of Board and Board Committee meeting agendas. In addition, OCC is making non-substantive drafting changes regarding: (i) The numbering of certain provisions in Section I of the GNC Charter and (ii) the requirements for GNC Committee reports to the Board in Section II of the Charter.
OCC is amending its TC Charter to require that the TC meet regularly, and no less than once annually, with OCC's Chief Security Officer (“CSO”) and to provide that the CSO is authorized to communicate directly with the Chair of the TC in between meetings of the
OCC is also making non-substantive amendments to Section III of the TC Charter to eliminate a provision that referenced approval of non-audit services, which appeared to be an inadvertent carry-over from the Audit Committee Charter and to Section IV of the Charter to change the term “the Company” to “OCC” and “Board of Directors” to “Board.”
Section 19(b)(2)(C) of the Act
Section 17A(b)(3)(F) of the Act requires,
OCC's proposal relates to OCC's governance arrangements. The proposal comprises changes to OCC's Certificate of Incorporation, By-Laws and Rules, Amended and Restated Stockholders Agreement, Board Charter, AC Charter, CPC Charter, RC Charter, GNC Charter, TC Charter, and Fitness Standards (collectively, “Governing Documents”), as described in greater detail above in section I, Description of the Proposed Rule Change. These changes fall broadly into the following categories: (1) Board and Committee composition; (2) Committee authority and procedures; (3) Board and Committee meeting management; (4) Board and Committee responsibilities and functions; and (5) administrative textual changes.
OCC will revise its By-Laws, Amended and Restated Stockholders Agreement, and Board Charter to reduce the number of Management Directors on its Board from two to one and remove references to the Management Vice Chairman. OCC stated that the position of the second Management Director, which is meant to be filled by the Management Vice Chairman, recently has been vacant. According to OCC, all of the Management Vice Chairman's obligations have been appropriately managed in the absence of a Management Vice Chairman. Further, OCC historically operated with only one Management Director until 2013.
OCC will also amend its By-Laws, AC Charter, and CPC Charter to require that the AC and the CPC each be chaired by Public Directors. The role of Public Director Chairs is to contribute to the objectivity and independence of the AC and CPC. The Commission believes that the changes to OCC's governing documents facilitating inclusion of the perspectives provided by OCC's Public Directors should support the protection of the public interest because such Public Directors are not affiliated with and therefore should not have conflicts obligating them to represent the views of any national securities exchange, association, broker, or dealer. Further, OCC is revising certain Governing Documents, as described in section I above, to remove term limits for Public Directors in recognition of the time necessary to develop the knowledge and understanding of OCC's business and because OCC believes that such directors provide significant value in the governance process. Therefore, the Commission finds that the changes described in section I above relating to the removal of the second Management Director, requiring that the AC and CPC each be chaired by Public Directors, and the removal of term limits for Public Directors, are consistent with the requirement under Section 17A(b)(3)(F) of the Act that the rules of a clearing agency be designed, among other things, to protect the public interest.
To enhance the independence of the oversight of OCC's control functions, OCC will revise the By-Laws and the AC Charter to provide that no Management Director may serve on the AC. Additionally, OCC will revise the By-Laws and RC Charter to require that at least one Exchange Director serve on the RC and to reduce the minimum number of Member Directors on the RC. These changes to the RC composition are intended to incorporate the expertise and perspective of OCC's owner Exchanges while allowing for greater flexibility in the selection of directors with the requisite skill and expertise to serve on the RC. The Commission believes that independence and expertise are important in the composition of the committees responsible for overseeing OCC's control and risk management functions. Therefore, the Commission finds that the changes to OCC's governing documents described above providing that no Management Director may serve on the AC, requiring at least one Exchange Director to serve on the RC, and reducing the minimum number of Member Directors on the RC, are consistent with the requirement in Rule 17Ad-22(d)(8)
As described in section I above, OCC intends to describe more clearly in its By-Laws, Amended and Restated Stockholders Agreement, Board Charter, and Fitness Standards the process for nominating Member Directors, Public Directors, the Executive Chairman, and the Member Vice Chairman. These changes are designed to provide for a consistent description across OCC's Governing Documents, as applicable, of the nomination process and the Board's participation in the process. The Commission finds that the changes described above to OCC's Governing Documents regarding the process for nominating Member Directors, Public Directors, and Executive Chairman, and the Member Vice Chairman are consistent with the requirement in Rule 17Ad-22(d)(8)
Additionally, OCC will make changes to certain Governing Documents, as described in section I above, related to the composition of the RC. Specifically, the changes will provide that the RC shall consist of the Executive Chairman, at least one Exchange Director, at least one Member Director, and at least one Public Director. In addition, the changes will provide for the election of the RC Chair by the RC members in the event that the Board does not designate a Chair. The Commission finds that changes to OCC's Governing Documents to clearly provide for the composition of the RC and for eventualities such as the failure of OCC's Board to designate the Chair of the RC, are consistent with the requirement in Rule 17Ad-22(d)(8)
As described in section I(7) above, OCC will also remove the requirement for a management liaison to the GNC from its GNC Charter because OCC believes that no such position is necessary based on its experience and because no other Board Committee has a formal management liaison. The Commission finds that revising the design of a clearing agency's policies and procedures related to its governance arrangements by removing an unnecessary position from the composition requirements of its governing bodies is consistent with the requirement in Rule 17Ad-22(d)(8)
As described in section I(3)(e) above, OCC will remove language from each Board Committee's Charter regarding the authority of the Chair of each Board Committee to act on behalf of its respective Board Committee in situations in which immediate action is required and convening a Board Committee meeting is impractical. OCC stated that it has been able to convene committee meetings when necessary and that the change will promote fully informed, deliberate decision making. Removing the authority of a Chair to act on behalf of a committee in this manner should support the incorporation of various stakeholder perspectives, which may include OCC's owners and participants as well as the public. The Commission finds the changes to each Board Committee's Charter to remove the authority of each Chair to act on behalf of its respective Board Committee, as described in greater detail in section I(3)(e) above, are consistent with the requirement in Rule 17Ad-22(d)(8)
OCC will also make changes to certain Governing Documents that are intended to enhance generally the quality of its governance arrangements. As described in section I(3)(e) above, changes to each Committee's Charter will allow each Committee to hire specialists without prior Board authorization, and have access to all books, records, facilities and personnel of OCC. As described in greater detail in sections I(4), I(5), and I(8) above, the charters of the AC, TC, and GNC will be revised to provide for more reporting to the full Board, and the CPC Charter will be revised to require the CPC to provide its full minutes to the Board. The Commission believes that providing the authority to hire specialists should enhance committee independence, while enhanced reporting requirements should support Board oversight. The Commission finds that the changes to the Committee Charters (i) to provide authority for Board Committees to hire specialists and access OCC books, records, facilities and personnel, and (ii) to provide for enhanced reporting requirements to the Board are consistent with the requirement of Rule 17Ad-22(d)(8)
Revisions to the RC Charter, described in greater detail in section I(6)(a) above, will permit the RC to delegate authority to the Management Committee and Enterprise Risk Management Committee while specifying that the RC is responsible for ratifying the actions taken under such delegated authority. Additionally, revisions to the RC Charter, described in section I(6)(c) above, will confirm the RC's authority to file certain regulatory submissions pursuant to delegations of authority from the Board. The Commission believes that the delegation of day-to-day risk management and implementation of RC-approved proposals may better support the clearing agency's risk management procedures by allowing the RC to better utilize its time and expertise. Therefore, the Commission finds that the changes to the RC Charter to allow the RC to delegate authority while requiring RC ratification of delegated actions and to confirm the RC's authority to authorize the filing of certain regulatory submissions pursuant to delegated authority from the Board, as described in sections I(6)(a) and (c) above, are consistent with the requirement in Rule 17Ad-22(d)(8)
OCC will remove from the RC Charter certain mandatory recusal requirements designed to apply to Member Directors of the RC as described in section I(6)(a) above. OCC makes available on its Web site its Code of Conduct for OCC Directors, which addresses the identification and management of conflicts of interest.
OCC also will make several revisions the Board Charter and Committee Charters regarding the meeting structure and frequency of its Board and Committees. As described in sections I(3)(a) and I(3)(e) above, OCC will make revisions to the Board Charter and Committee Charters intended to enhance the framework for holding and recording executive sessions of the Board and Committees. The amended Board Charter will require the Executive Chairman, in consultation with the Corporate Secretary, to establish an agenda in advance of each Board meeting, and revisions to the GNC Charter will similarly require the GNC Chair, in consultation with the Corporate Secretary, to establish an agenda in advance of each GNC meeting. Revisions to the Board Charter and Committee Charters will discourage attendance by telephone at Board and Committee meetings to promote fully informed discussions and decisions. In addition, OCC will amend the Board Charter to authorize the Board to hold additional meetings, as it deems appropriate. Finally, as described in sections I(5)(a) and I(6)(a), respectively, OCC will amend the CPC Charter to specify that the CPC will meet four times per year, as opposed to in advance of each Board meeting, and will amend the RC Charter to specify that the RC will meet six, as opposed to seven, times per year. The Commission finds that changes to OCC's governing documents to clearly describe Board and Committee meeting practices and require the Board and Committees to hold and record executive sessions as described in this paragraph are consistent with the requirement in Rule 17Ad-22(d)(8)
As described above, OCC is amending the Board Charter and Committee Charters regarding the functions and responsibilities of the Board and its Committees. The revised Board Charter will describe the Board's responsibilities in light of OCC's role as a systemically important financial market utility, as detailed in section I(3)(b) above. As described in section I(3)(c) above, amendments to the Board Charter will require the Board to review its Charter, OCC's Corporate Governance Principles, and Fitness Standards annually. Additional revisions to the Board Charter are intended to specify that, in addition to overseeing major capital expenditures and approving the annual budget and corporate plan, the Board is responsible for reviewing and approving OCC's financial objectives and strategies, capital plan and capital structure, OCC's fee structure, and major corporate plans and actions, as well as periodically reviewing the types and amounts of insurance coverage available in light of OCC's clearing operations. The Commission finds that changes to OCC's Board Charter designed to document OCC's recognition of its responsibilities as a systemically important financial market utility, to require the Board to review certain OCC governing documents annually, and to specify further the Board's responsibilities are consistent with the requirement in Rule 17Ad-22(d)(8)
As described in section I(3)(e) above, OCC is amending the Board Charter and Committee Charters to require the Board and the Committees to perform annual self-evaluations, and require the Board to evaluate individual directors annually. The Commission finds that changes to OCC's Board Charter and Committee Charters to require OCC's governing bodies to perform such evaluations should support the effectiveness of OCC's governing bodies and thus are consistent with the requirement in Rule 17Ad-22(d)(8)
Revisions to the Board Charter are intended to make the RC, as opposed to the Board, responsible for overseeing OCC's framework for managing strategic, financial, and operational risk, with continued oversight from the Board. OCC stated that this function is already performed by the RC (as reflected in the RC Charter). The Commission finds that changes to the Board and RC Charters intended to clarify the RC's responsibility for the oversight of the risk management matters, as described in section I(3)(b) above, are consistent with the requirement in Rule 17Ad-22(d)(8)
OCC will revise the AC, RC, and TC Charters to clarify the reporting lines of certain officers to their respective Board Committees. In addition, the revised Committee Charters, among other things, will require that the AC meets regularly, but no less than annually with the CFO, CAE, and CCO; that the RC meets regularly, but no less than annually with the CRO; and that the TC meets regularly, but no less than annually with the CSO. Additionally, the revised Committee Charters will authorize the officers listed above, other than the CFO, to communicate directly with the Chairs of their respective Board Committees. The Commission finds that these changes to OCC's Committee Charters to clarify reporting lines of officers responsible for OCC's control and risk management functions, as described in sections I(4)(a), I(6)(a), and I(8) above, are consistent with the requirement in Rule 17Ad-22(d)(8)
As noted above, OCC will revise certain Committee Charters regarding the reporting lines of the CRO, CAE, and CCO. Consistent with these changes, OCC will also revise the RC and AC Charters such that the RC will set compensation for the CRO, and the AC will set compensation for the CAE and CCO. Relatedly, OCC will amend the CPC Charter to remove a requirement that the CPC meet with the RC Chair or AC Chair in executive session regarding the compensation of the CRO, CAE, or CCO. As described above in sections I(4)(b), I(5)(a), and I(6)(c) above, these changes are intended to underscore the independence of the CRO, CAE, and CCO. The Commission finds that these changes are consistent with the requirement in Rule 17Ad-22(d)(8)
OCC is amending the AC Charter regarding the AC's responsibilities. The amended charter, among other things, will restate and revise the AC's responsibility for oversight of the external auditor and financial reporting; the Internal Audit department, Compliance department, and compliance related matters; and OCC's Chief Audit Executive and Chief Compliance Officer.
As described in greater detail in section I(4)(b) above, the amendments are intended to reinforce and expand upon the AC's oversight responsibilities, which should support OCC's control framework. The Commission believes that the governance of OCC's control framework is important to OCC's overall functioning. Therefore, the Commission finds that the changes to the AC Charter to restate and revise the AC's responsibility for oversight of OCC's control functions and the officers responsible for managing such functions, as described above, are consistent with the requirement in Rule 17Ad-22(d)(8)
OCC is amending the CPC Charter regarding the CPC's responsibilities. Under the revised CPC Charter, among other things, the CPC will be responsible for assisting the Board with oversight of OCC's overall performance as well as capital and leadership planning, approving the goals and objectives of the Executive Chairman, and reviewing the compensation of the Management Committee. The amended CPC Charter will restate and revise the CPC's responsibility for oversight of OCC's Capital Plan; human resources and compensation programs; and employee benefit programs, including the monitoring of the Administrative Committee.
Under the revised CPC Charter, the CPC will also be responsible for providing periodic updates to the Board regarding CPC actions with respect to compensation, retirement, and employee welfare plans, financial position and performance of such plans, and adherence to investment guidelines. The Commission finds that changes to OCC's CPC Charter as described in detail in section I(5)(b) above are consistent with the requirement in Rule 17Ad-22(d)(8)
OCC is amending the RC Charter to clarify and expand the RC's responsibilities. Under the revised RC Charter, the RC will be responsible for coordinating with the other Committees to achieve comprehensive oversight of OCC's risk-related matters, among other things. The amended RC Charter will restate and revise the RC's responsibility for oversight of membership and margin requirements; OCC's Enterprise Risk Management program and risk tolerances; contingency planning and model risk management; the process for managing exposures to banks, depositories, financial market utilities, and trade sources as well as the process for managing liquidity needs; and management's handling of the Financial Risk Management group, review of OCC's risk reporting metrics, and identification of risk issues for escalation to the Board.
The amended RC Charter will also restate and revise the RC's responsibility for discussing, with management, the impact on systemic stability that could arise out of OCC's responses to extraordinary market events. The Commission finds that the changes to the RC Charter as described in detail in section I(5)(b) above clarify and expand the RC's responsibilities for coordination of risk-related matters, oversight of membership requirements and risk management, and discussion of the potential impact of OCC's responses to extraordinary market events, and are consistent with the requirement in Rule 17Ad-22(d)(8)
OCC will make a number of textual changes to its governing documents that are not intended to change the meaning of those documents. Such changes include the following:
• As described in section I(2)(c) above, OCC will consolidate the current By-Law provisions describing its Board Committees. OCC will also add By-Law provisions to describe those Board Committees not currently described in the By-Laws.
• As described in section I(3)(a) above, OCC will revise the Board Charter, consistent with existing rules, to reflect an increase in the number of Public Directors on OCC's Board from three to five. As described in section I(3)(b) above, OCC will replace language in the Board Charter concerning the Board's obligations that duplicates language currently in OCC's By-Laws with a general statement that the Board will perform functions, as it believes necessary, or as prescribed by rules or regulation, and will reorganize section IV of the Board Charter. As described in section I(3)(c) above, OCC will remove the list of stakeholders from the introductory language of the Board Charter, and will revise the language throughout the charter to recognize the TC.
• As described in greater detail in section I(3)(d) above, OCC will remove, from its Fitness Standards, descriptions of the categories of directors represented on the Board because they are maintained in Article III of the By-Laws.
• Across all of the charters, OCC will replace references to the “Performance Committee” and the “Governance Committee” with references to the “Compensation and Performance Committee” and “Governance and Nominating Committee,” respectively.
• In certain Committee Charters, OCC will add broad statements that encompass and replace current language concerning the respective Committee's functions and responsibilities. The AC Charter will state that the AC oversees internal controls and compliance. OCC will remove language regarding review of the Corporate Plan and administration of compensation plans from the CPC charter. OCC will broaden the RC Charter description of the RC's oversight of the clearing membership framework.
• As described in section I(4)(a), OCC will replace the term “independent accountant” with “external auditor” in the AC Charter. As described in section I(5)(a), OCC will reword the delegation of authority to the Administrative Committee in the CPC Charter. As described in section I(7), OCC will renumber sections in the first paragraph of the GNC Charter.
• As described in section I(6)(b), OCC will remove language from the RC Charter regarding the approval of non-U.S. institutions to issue letters of credit because this language contradicts OCC's By-Laws. OCC will remove language from the TC Charter related to audit because that language was inadvertently carried-over from the AC Charter.
The Commission believes that the foregoing changes clarify the language of OCC's governing documents. The Commission finds that changes designed to clarify the language of a clearing agency's governing documents are consistent with the requirement in Rule 17Ad-22(d)(8)
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of Act, and in particular, with the requirements of Section 17A of the Act and the rules and regulations thereunder.
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On June 1, 2016, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission is publishing this order to solicit comments on Amendment No. 2 from interested persons and to institute proceedings pursuant to Exchange Act Section 19(b)(2)(B) of the Act
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change. The Exchange has prepared summaries, set forth in sections A, B, C, and D below, of the most significant parts of such statements.
The Exchange proposes to list and trade shares (“Shares”) of the Long Dollar Gold Trust (the “Fund”), a series of the World Currency Gold Trust (“Trust”), under NYSE Arca Equities Rule 8.201.
The Fund will not be registered as an investment company under the Investment Company Act of 1940
The Sponsor of the Fund and the Trust will be WGC USA Asset Management Company, LLC (the “Sponsor”).
The Commission has previously approved listing on the Exchange under NYSE Arca Equities Rules 5.2(j)(5) and 8.201 of other precious metals and gold-based commodity trusts, including the Merk Gold Trust;
Gold bullion typically is priced and traded throughout the world in U.S. dollars. The Fund has been established as an alternative to traditional dollar-based gold investing. Although investors will purchase shares of the Fund with U.S. dollars, the Fund is designed to provide investors with the economic effect of holding gold in terms of a specific basket of major, non-U.S. currencies, such as the euro, Japanese yen and British pound (each, a “Reference Currency”), rather than the U.S. dollar. Specifically, the Fund will seek to track the performance of the Solactive GLD® Long USD Gold Index, less Fund expenses. The Solactive GLD® Long USD Gold Index, or the “Index”, represents the daily performance of a long position in physical gold and a short position in the FX Basket
The U.S. dollar value of an investment in Shares of the Fund would therefore be expected to increase when both the price of Gold goes up and the value of the U.S. dollar increases against the value of the Reference Currencies comprising the FX Basket (as weighted in the Index). Conversely, the U.S. dollar value of an investment would be expected to decrease when the price of Gold goes down and the value of the U.S. dollar decreases against the value of the Reference Currencies comprising the FX Basket (as weighted in the Index). If Gold increases and the value of the U.S. dollar decreases against the value of the Reference Currencies comprising the FX Basket, or vice versa, the net impact of these changes will determine the value of the Shares of the Fund on a daily basis.
The Fund is a passive investment vehicle and is designed to track the performance of the Index regardless of: (i) The value of Gold or any Reference Currency; (ii) market conditions; and (iii) whether the Index is increasing or decreasing in value. The Fund's holdings generally will consist entirely of Gold. Substantially all of the Fund's Gold holdings will be delivered by Authorized Participants (defined below) in exchange for Fund Shares. The Fund will not hold any of the Reference Currencies. The Fund generally will not hold U.S. dollars (except from time to time in very limited amounts to pay expenses). The Fund's Gold holdings will not be managed and the Fund will not have any investment discretion.
The Fund's net asset value (“NAV”) will go up or down each “Business Day” based primarily on two factors.
Because the Fund generally will hold only Gold bullion (and not U.S. dollars or the Reference Currencies), the economic impact of changes to the value of the Reference Currencies against the U.S. dollar from day to day is reflected in the Fund by moving an amount of Gold ounces of equivalent value in or out of the Fund. Therefore, the Fund will seek to track the performance of the Index by entering into a transaction each Index Business Day with the “Gold Delivery Provider” pursuant to which Gold is moved in or out of the Fund.
The Fund does not intend to enter into any other Gold transactions other than with the Gold Delivery Provider as described in the Gold Delivery Agreement (except that the Fund may sell Gold to cover Fund expenses), and the Fund does not intend to hold any Reference Currency or enter into any currency transactions.
The Index is maintained and calculated by a third-party data and index provider, Solactive AG (the “Index Provider”). The Index Provider will license the Index to the Sponsor for use in connection with the Trust and the Fund. The Index Provider is not affiliated with the Trust, the Fund, the Sponsor, the trustee for the Trust, the Administrator, the Transfer Agent, the Custodian or the Gold Delivery Provider. The Index Provider is not affiliated with a broker-dealer. The Index Provider has adopted policies and procedures designed to prevent the spread of material non-public information about the Index.
The description of the strategy and methodology underlying the Index, which will be identified and described in the Registration Statement, is based on rules formulated by the Index Provider (the “Index Rules”). The Index Rules, which will be described in the Registration Statement, will govern the calculation and constitution of the Index and other decisions and actions related to its maintenance. The Index is described as a “notional” or “synthetic” portfolio or strategy because there is no actual portfolio of assets to which any person is entitled or in which any person has any ownership interest. The Index references certain assets (
The Index values Gold on a daily basis using the “Gold Price.” The Gold Price generally is the LBMA Gold Price AM. The “LBMA Gold Price” means the price per troy ounce of Gold stated in U.S. dollars as set via an electronic auction process run twice daily at 10:30 a.m. and 3:00 p.m., London time each Business Day as calculated and administered by ICE Benchmark Administration Limited (“IBA”) and published by LBMA on its Web site. The “LBMA Gold Price AM” is the 10:30 a.m. LBMA Gold Price. IBA, an independent specialist benchmark administrator, provides the price platform, methodology and the overall administration and governance for the LBMA Gold Price.
As noted herein, the term “Reference Currencies” refers to the following non-U.S. currencies: The euro, Japanese yen, British pound sterling, Canadian dollar, Swedish krona and Swiss franc. Each Reference Currency comprising the FX Basket is expressed in terms of a number of foreign currency units relative to one U.S. dollar (
The Index references European Union euro (“euro” or “EUR”), the Japanese yen (“JPY” or yen”), the British pound sterling (“GBP”), the Swiss franc (“CHF”), the Canadian dollar (“CAD”) and the Swedish Krona (“SEK”) (each of which is measured against U.S. dollars). The weightings of each currency referenced are as follows: Euro (57.6%), yen (13.6%), GBP (11.9%), CAD (9.1%), SEK (4.2%) and CHF (3.6%).
Reference Currency Index values generally are calculated using the published WM/Reuters (“WMR”)
The World Markets Company plc (“WM”) provides an exchange rate service that publishes Spot Rates at fixed times throughout the global trading day. WM does not use a panel or polling solicitation process to obtain underlying data in the benchmark calculation process. WM uses transactional data to set “Trade Rates,” reflecting data from actual transactions entered into on an arm's length basis between buyers and sellers in
Settlement in most spot currency transactions is two currency business days after the trade date. A “spot-next trade” effectively extends the spot settlement cycle by one Business Day (
In general, the Index is calculated and published by the Index Provider each Index Business Day, unless there is a “Market Disruption Event” or “Extraordinary Event” as described below. The Index value is disseminated each Index Business Day at approximately 6:00 a.m. Eastern time (“E.T.”).
The Index methodology is transparent. Market makers will recalculate an approximate Index value using reliable intraday prices of gold and the relevant Index currencies to identify arbitrage opportunities that present themselves during the Exchange's Core Trading Session (ordinarily 9:30 a.m. to 4:00 p.m., E.T.).
The Fund has entered into a written contract with the Gold Delivery Provider. Subject to the terms of the Gold Delivery Agreement, on a daily basis, the Gold Delivery Provider will (i) calculate the Gold Delivery Amount and (ii) deliver Gold ounces equal to the U.S. dollar value of the Gold Delivery Amount into or out of the Fund. The Gold Delivery Amount is the amount of Gold ounces to be delivered into or out of the Fund on a daily basis to reflect price movements in the Reference Currencies comprising the FX Basket against the U.S. dollar from the prior Index Business Day (assuming no Market Disruption Event or Extraordinary Event has occurred or is continuing, as described in more detail below).
On each Index Business Day, the Gold Delivery Provider determines the notional exposure for each Reference Currency comprising the FX Basket based upon their respective Index weights. The total notional exposure for each Reference Currency on an Index Business Day takes into account the NAV of the Fund (which takes into account creation and redemption orders received on that day).
The Gold Delivery Provider then determines the “FX PnL” which captures the effect of changes in the daily value of the Reference Currencies comprising the FX Basket in their respective weights by calculating the change in the Spot Rate from the prior Index Business Day to the current Index Business Day and adjusting that change to reflect a notional spot-next trade because delivery of currencies is not being taken. The Gold Delivery Provider may use another rate if any Spot Rate is delayed or unavailable as set forth in the Gold Delivery Agreement. The Gold Delivery Provider generally will make this calculation outside of U.S. market hours (at approximately 4:00 a.m. E.T.) based on the prices of the Reference Currencies comprising the FX Basket published at the “WMR FX Fixing Time,” which is generally at 9:00 a.m., London Time.
The FX PnL is divided by the Gold Price (
If the Gold Delivery Amount is a positive number (meaning that the Fund has experienced a currency gain on the notional short position in the FX Basket comprised of Reference Currencies), the Gold Delivery Provider will transfer to the Fund's custody account an amount of Gold (in ounces) equal to the Gold Delivery Amount. If the Gold Delivery Amount is a negative number (meaning that the Fund has experienced a currency loss on the notional short position in the FX Basket comprised of Reference Currencies), the Fund will transfer to the Gold Delivery Provider's custody account an amount of Gold (in ounces) equal to the Gold Delivery Amount.
From time to time, unexpected events may cause the calculation of the Index and/or the operation of the Fund to be disrupted. These events are expected to be relatively rare, but there can be no guarantee that these events will not occur. These events are referred to as either “Market Disruption Events” or “Extraordinary Events” depending largely on their significance and potential impact to the Index and Fund. Market Disruption Events generally include disruptions in the trading of Gold or the Reference Currencies comprising the FX Basket, delays or disruptions in the publication of the LBMA Gold Price or the Reference Currency prices, and unusual market or other events that are tied to either the trading of gold or the Reference Currencies comprising the FX Basket or otherwise have a significant impact on the trading of gold or the Reference Currencies comprising the FX Basket. For example, market conditions or other events which result in a material limitation in, or a suspension of, the trading of physical Gold generally would be considered Market Disruption Events, as would material disruptions or delays in the determination or publication of the LBMA Gold Price AM. Similarly, market conditions which prevent, restrict or delay the Gold Delivery Provider's ability to convert a Reference Currency to U.S. dollars or deliver a Reference Currency through customary channels generally would be considered a Market Disruption Event, as would material disruptions or delays in the determination or publication of WMR spot prices for any Reference Currency comprising the FX Basket. The complete definition of a Market Disruption Event is set forth below.
A “Market Disruption Event” occurs if either an “FX Basket Disruption Event” or a “Gold Disruption Event” occurs.
An “FX Basket Disruption Event” occurs if any of the following exist on any “Index Business Day”
(i) An event, circumstance or cause (including, without limitation, the adoption of or any change in any applicable law or regulation) that has had or would reasonably be expected to have a materially adverse effect on the availability of a market for converting such Reference Currency to US Dollars (or vice versa), whether due to market illiquidity, illegality, the adoption of or change in any law or other regulatory instrument, inconvertibility, establishment of dual exchange rates or foreign exchange controls or the occurrence or existence of any other circumstance or event, as determined by the Index Sponsor; or
(ii) the failure of Reuters to announce or publish the relevant spot exchange rates for any Reference Currency in the FX Basket; or
(iii) any event or any condition that (I) results in a lack of liquidity in the market for trading any Reference Currency that makes it impossible or illegal for market participants (a) to convert from one currency to another through customary commercial channels, (b) to effect currency transactions in, or to obtain market values of, such, currency, (c) to obtain a firm quote for the related exchange rate, or (d) to obtain the relevant exchange rate by reference to the applicable price source; or (II) leads to any governmental entity imposing rules that effectively set the prices of any of the currencies; or
(iv) the declaration of (a) a banking moratorium or the suspension of payments by banks, in either case, in the country of any currency used to determine any Reference Currency exchange rate, or (b) capital and/or currency controls (including, without limitation, any restriction placed on assets in or transactions through any account through which a non-resident of the country of any currency used to determine the currency exchange rate may hold assets or transfer monies outside the country of that currency, and any restriction on the transfer of funds, securities or other assets of market participants from, within or outside of the country of any currency used to determine the applicable exchange rate.
A “Gold Disruption Event” occurs if any of the following exist on any Index Business Day with respect to gold:
(i) (a) The failure of the LBMA to announce or publish the LBMA Gold Price (or the information necessary for determining the price of gold) on that Index Business Day, (b) the temporary or permanent discontinuance or unavailability of the LBMA or the LBMA Gold Price; or
(ii) the material suspension of, or material limitation imposed on, trading in Gold by the LBMA; or
(iii) an event that causes market participants to be unable to deliver gold bullion loco London under rules of the LBMA by credit to an unallocated account at a member of the LBMA; or
(iv) the permanent discontinuation of trading of gold on the LBMA or any successor body thereto, the disappearance of, or of trading in, gold; or
(v) a material change in the formula for or the method of calculating the price of gold, or a material change in the content, composition or constitution of gold. The occurrence of a Market Disruption Event for five Index Business Days generally would be considered an Extraordinary Event for the Index and Fund.
On any Index Business Day in which a Market Disruption Event or Extraordinary Event has occurred or is continuing, the Index Provider generally will calculate the Index based on the following fallback procedures: (i) Where the Market Disruption Event is based on the Gold Price, the Index will be kept at the same level as the previous Index Business Day and updated when the Gold Price is no longer disrupted; (ii) where the Gold Price is not disrupted but one of the Reference Currency prices is disrupted, the Index will be calculated in the ordinary course except that the disrupted Reference Currency will be kept at its value from the previous Index Business Day and updated when it is no longer disrupted; and (iii) if both the Gold Price and a Reference Currency price are disrupted, the Index will be kept at the same level as the previous Index Business Day and updated when such prices are no longer disrupted. If a Market Disruption Event has occurred and is continuing for five (5) or more consecutive Index Business Days, the Index Provider will calculate a substitute price for each index component that is disrupted. If an Extraordinary Event has occurred and is continuing, the Index Provider shall be responsible for making any decisions regarding the future composition of the Index and implement any necessary adjustments that might be required. If necessary, the Fund may use alternate pricing sources to calculate NAV during the occurrence of any Market Disruption or Extraordinary event.
Although the market for physical gold is global, most over-the-counter, or “OTC”, trades are cleared through London. In addition to coordinating market activities, the LBMA acts as the principal point of contact between the market and its regulators. A primary function of the LBMA is its involvement in the promotion of refining standards by maintenance of the “London Good Delivery Lists,” which are the lists of LBMA accredited melters and assayers of gold. The LBMA also coordinates market clearing and vaulting, promotes good trading practices and develops standard documentation.
The term “loco London” refers to gold bars physically held in London that meet the specifications for weight, dimensions, fineness (or purity), identifying marks (including the assay stamp of a LBMA acceptable refiner) and appearance set forth in “The Good Delivery Rules for Gold and Silver Bars” published by the LBMA. Gold bars meeting these requirements are known as “London Good Delivery Bars.” All of the gold held by the Fund will be London Good Delivery Bars meeting the specifications for weight, dimensions, fineness (or purity), identifying marks and appearance of gold bars as set forth in “The Good Delivery Rules for Gold and Silver Bars” published by the LBMA.
The unit of trade in London is the troy ounce, whose conversion between grams is: 1,000 grams = 32.1507465 troy ounces and 1 troy ounce = 31.1034768 grams. A London Good Delivery Bar is acceptable for delivery in settlement of a transaction on the OTC market. Typically referred to as 400-ounce bars, a London Good Delivery Bar must contain between 350 and 430 fine troy ounces of gold, with a minimum fineness (or purity) of 995 parts per 1,000 (99.5%), be of good appearance and be easy to handle and stack. The fine gold content of a gold bar is calculated by multiplying the gross weight of the bar (expressed in units of 0.025 troy ounces) by the fineness of the bar.
IBA hosts a physically settled, electronic and tradeable auction process that provides a market-based platform for buyers and sellers to trade physical spot Gold. The final auction price is used and published to the market as the “LBMA Gold Price benchmark.” The LBMA Gold Price is set twice daily at 10:30 a.m., London time and 3:00 p.m., London time in three currencies: U.S. dollars, euro and British pounds sterling. The LBMA Gold Price is a widely used benchmark for the physical spot price of Gold and is quoted by various financial information sources.
Participants in the IBA auction process submit anonymous bids and offers which are published on screen and in real-time. Throughout the auction process, aggregated Gold bids and offers are updated in real-time with the imbalance calculated and the price updated every 45 seconds until the buy and sell orders are matched. When the net volume of all participants falls within a pre-determined tolerance, the auction is deemed complete and the applicable LBMA Gold Price is published. Information about the auction process (such as aggregated bid and offer volumes) will be immediately available after the auction on the IBA's Web site.
The LBMA Gold Price replaced the widely used “London Gold Fix” as of March 20, 2015.
Although the Fund will not invest in gold futures, information about the gold futures market is relevant as such markets contribute to, and provide evidence of, the liquidity of the overall market for Gold.
The most significant gold futures exchange is COMEX, part of the CME Group, Inc., which began to offer trading in gold futures contracts in 1974. TOCOM (Tokyo Commodity Exchange) is another significant futures exchange and has been trading gold since 1982. Trading on these exchanges is based on fixed delivery dates and transaction sizes for the futures and options contracts traded. Trading costs are negotiable. As a matter of practice, only a small percentage of the futures market turnover ever comes to physical delivery of the gold represented by the contracts traded. Both exchanges permit trading on margin. Both COMEX and TOCOM operate through a central clearance system and in each case, the clearing organization acts as a counterparty for each member for clearing purposes. Gold futures contracts also are traded on the Shanghai Gold Exchange and the Shanghai Futures Exchange.
The global gold markets are overseen and regulated by both governmental and self-regulatory organizations. In addition, certain trade associations have established rules and protocols for market practices and participants.
The Administrator will determine the NAV of Shares of the Fund each Business Day. The NAV of Shares of the Fund will be the aggregate value of the Fund's assets (which include gold payable, but not yet delivered, to the Fund) less its liabilities (which include accrued but unpaid fees and expenses). The NAV of the Fund will be calculated based on the price of Gold per ounce applied against the number of ounces of Gold owned by the Fund. For purposes of calculating NAV, the number of ounces of Gold owned by the Fund is adjusted up or down on a daily basis to reflect the Gold Delivery Amount. The number of ounces of Gold held by the Fund also reflects the amount of Gold delivered into (or out of) the Fund on a daily basis by Authorized Participants (as described below) creating and redeeming Shares. The number of ounces of Gold held by the Fund is adjusted downward by the Sponsor's fee and the expenses of the Gold Delivery Agreement.
In determining the Fund's NAV, the Administrator generally will value the Gold held by the Fund based on the LBMA Gold Price AM for an ounce of Gold. If no LBMA Gold Price AM is made on a particular Business Day (including a Business Day that is not an Index Business Day), the next most recent LBMA Gold Price AM determined prior to that Business Day generally will be used in the determination of the NAV of the Fund, unless the Sponsor determines that such price is inappropriate to use as the basis for such determination.
The Fund expects to create and redeem Shares but only in Creation Units (a Creation Unit equals a block of 10,000 Shares or more). The creation and redemption of Creation Units requires the delivery to the Fund (or the distribution by the Fund in the case of redemptions) of the amount of Gold and any cash, if any, represented by the Creation Units being created or redeemed. The total amount of Gold and cash, if any, required for the creation of Creation Units will be based on the combined NAV of the number of Creation Units being created or redeemed. The initial amount of Gold required for deposit with the Fund to create Shares is 1,000 ounces per Creation Unit. The number of ounces of Gold required to create a Creation Unit or to be delivered upon redemption of a Creation Unit will change over time depending on Index performance net of the fees charged by the Fund and the Gold Delivery Provider. Creation Units may be created or redeemed only by “Authorized Participants” (as described below), who may be required to pay a transaction fee for each order to create or redeem Creation Units as will be set forth in the Registration Statement. Authorized Participants may sell to other investors all or part of the Shares included in the Creation Units they purchase from the Fund.
Authorized Participants are the only persons that may place orders to create and redeem Creation Units. To become an Authorized Participant, a person must enter into a Participant Agreement. All Gold bullion must be delivered to the Fund and distributed by the Fund in unallocated form through credits and debits between an Authorized Participant's unallocated account (“Authorized Participant Unallocated Account”) and the Fund's unallocated account (“Fund Unallocated Account”) (except for Gold delivered to or from the Gold Delivery Provider pursuant to the Gold Delivery Agreement). All Gold bullion must be of at least a minimum fineness (or purity) of 995 parts per 1,000 (99.5%) and otherwise conform to the rules, regulations practices and customs of the LBMA, including the specifications for a London Good Delivery Bar.
On any Business Day, an Authorized Participant may place an order with the Fund to create one or more Creation Units. Purchase orders must be placed by 5:30 p.m., E.T. The day on which the Fund receives a valid purchase order is the purchase order date. By placing a purchase order, an Authorized Participant agrees to deposit Gold with the Fund, or a combination of Gold and cash, if any, as described below.
The total deposit of Gold (and cash, if any) required to create each Creation Unit is referred to as the “Creation Unit Gold Delivery Amount.” The Creation Unit Gold Delivery Amount is the number of ounces of Gold required to be delivered to the Fund by an Authorized Participant in connection with a creation order for a single Creation Unit.
An Authorized Participant who places a purchase order is responsible for crediting its Authorized Participant Unallocated Account with the required Gold deposit amount by the end of the third Business Day in London following the purchase order date. Upon receipt of the Gold deposit amount, the Custodian, after receiving appropriate instructions from the Authorized Participant and the Fund, will transfer on the third Business Day following the purchase order date the Gold deposit amount from the Authorized Participant Unallocated Account to the Fund Unallocated Account and the Administrator will direct the Depository Trust Company (“DTC”) to credit the number of Creation Units ordered to the Authorized Participant's DTC account. The expense and risk of delivery, ownership and safekeeping of Gold until such Gold has been received by the Fund will be borne solely by the Authorized Participant. If Gold is to be delivered other than as described above, the Sponsor is authorized to establish such procedures and to appoint such custodians and establish such custody accounts as the Sponsor determines to be desirable.
Acting on standing instructions given by the Fund, the Custodian will transfer the Gold deposit amount from the Fund Unallocated Account to the Fund's allocated account by allocating to the allocated account specific bars of Gold which the Custodian holds or instructing a subcustodian to allocate specific bars of Gold held by or for the subcustodian. The Gold bars in an allocated Gold account are specific to that account and are identified by a list which shows, for each Gold bar, the refiner, assay or fineness, serial number and gross and fine weight. Gold held in the Fund's allocated account is the property of the Fund and is not traded, leased or loaned under any circumstances.
The Custodian will use commercially reasonable efforts to complete the transfer of Gold to the Fund's allocated account prior to the time by which the Administrator is to credit the Creation Unit to the Authorized Participant's DTC account; if, however, such transfers have not been completed by such time, the number of Creation Units ordered will be delivered against receipt of the Gold deposit amount in the Fund's unallocated account, and all Shareholders will be exposed to the risks of unallocated Gold to the extent of that Gold deposit amount until the Custodian completes the allocation process.
The Fund has the right, but not the obligation, to reject a purchase order if (i) the order is not in proper form as described in the Participant Agreement, (ii) the fulfillment of the order, in the opinion of its counsel, might be unlawful, (iii) if the Fund determines that acceptance of the order from an Authorized Participant would expose
The procedures by which an Authorized Participant can redeem one or more Creation Units mirror the procedures for the creation of Creation Units. On any Business Day, an Authorized Participant may place an order with the Fund to redeem one or more Creation Units. Redemption orders must be placed by 5:30 p.m. E.T. A redemption order so received is effective on the date it is received in satisfactory form by the Fund. An Authorized Participant may be required to pay a transaction fee per order to create or redeem Creation Units as will be set forth in the Registration Statement.
The redemption distribution from the Fund consists of a credit in the amount of the Creation Unit Gold Delivery Amount to the Authorized Participant Unallocated Account of the redeeming Authorized Participant. The Creation Unit Delivery Amount for redemptions is the number of ounces of Gold held by the Fund associated with the Shares being redeemed plus, or minus, the cash redemption amount (if any). The Sponsor anticipates that in the ordinary course of the Fund's operations there will be no cash distributions made to Authorized Participants upon redemptions. In addition, because the Gold to be paid out in connection with the redemption order will decrease the amount of Gold subject to the Gold Delivery Agreement, the Creation Unit Gold Delivery Amount reflects the cost to the Gold Delivery Provider of resizing (
The redemption distribution due from the Fund is delivered to the Authorized Participant on the third Business Day following the redemption order date if, by 10:00 a.m. E.T. on such third Business Day, the Fund's DTC account has been credited with the Creation Units to be redeemed. If the Administrator's DTC account has not been credited with all of the Creation Units to be redeemed by such time, the redemption distribution is delivered to the extent of whole Creation Units received. Any remainder of the redemption distribution is delivered on the next Business Day to the extent of remaining whole Creation Units received if the Administrator receives the fee applicable to the extension of the redemption distribution date which the Administrator may, from time to time, determine and the remaining Creation Units to be redeemed are credited to the Administrator's DTC account by 10:00 a.m. E.T. on such next Business Day. Any further outstanding amount of the redemption order will be cancelled. The Administrator is also authorized to deliver the redemption distribution notwithstanding that the Creation Units to be redeemed are not credited to the Administrator's DTC account by 10:00 a.m. E.T. on the third Business Day following the redemption order date if the Authorized Participant has collateralized its obligation to deliver the Creation Units through DTC's book entry system on such terms as the Sponsor and the Administrator may from time to time agree upon.
The Custodian transfers the redemption Gold amount from the Fund's allocated account to the Fund's unallocated account and, thereafter, to the redeeming Authorized Participant's Authorized Participant Unallocated Account.
The Fund may, in its discretion, suspend the right of redemption, or postpone the redemption settlement date: (1) For any period during which NYSE Arca is closed other than customary weekend or holiday closings, or trading on NYSE Arca is suspended or restricted, (2) for any period during which an emergency exists as a result of which delivery, disposal or evaluation of Gold is not reasonably practicable, or (3) such other period as the Sponsor determines to be necessary for the protection of the Shareholders, such as during the occurrence of a Market Disruption Event or Extraordinary Event based on the Gold Price.
The Fund has the right, but not the obligation, to reject a redemption order if (i) the order is not in proper form as described in the Participant Agreement, (ii) the fulfillment of the order, in the opinion of its counsel, might be unlawful, (iii) if the Fund determines that acceptance of the order from an Authorized Participant would expose the Fund to credit risk; or (iv) circumstances outside the control of the Administrator, the Sponsor or the Custodian make the redemption, for all practical purposes, not feasible to process.
While the Fund's investment objective is for the Shares to reflect the performance of Gold bullion in terms of the Reference Currencies reflected in the Index, less the expenses of the Fund, the Shares may trade in the secondary market at prices that are lower or higher relative to their NAV per Share. The amount of the discount or premium in the trading price relative to the NAV per Share may be influenced by non-concurrent trading hours between the NYSE Arca and the COMEX, London, Zurich and Singapore. While the Shares will trade on NYSE Arca until 8:00 p.m. E.T., liquidity in the global gold market will be reduced after the close of the COMEX at 1:30 p.m. E.T. As a result, during this time, trading spreads, and the resulting premium or discount, on the Shares may widen.
The Adviser represents that market makers in the Shares will be able to efficiently hedge their positions through use of spot gold transactions and spot currency transactions in Reference Currencies comprising the FX Basket. Transactions in spot gold and spot currencies during the Exchange's Core Trading Session (9:30 a.m. to 4:00 p.m. E.T.) take place in a highly liquid market; such transactions that hedge the market makers' positions in Shares are expected to facilitate the market maker's ability to trade Shares at a price that is not at a material discount or premium to NAV.
The Sponsor will receive an annual fee equal to 0.33% of the daily NAV of the Fund. In return the Sponsor will be responsible for the payment of the ordinary fees and expenses of the Fund, including the Administrator's fee, the Custodian's fee, and the Index Provider's fee. This will be the case regardless of whether the ordinary expenses of the Fund exceed 0.33% of the daily NAV of the Fund. In addition, the Fund will pay the Gold Delivery Provider an annual fee of 0.17% of the daily NAV, so that the Fund's total annual expense ratio will be equal to 0.50%. The Sponsor's fee and payment to the Gold Delivery Provider are expected to be the only ordinary recurring expenses of the Fund.
Currently, the Consolidated Tape Plan does not provide for dissemination of the spot price of a commodity, such as gold, or the spot price of the Reference Currencies, over the Consolidated Tape. However, there will be disseminated over the Consolidated Tape the last sale price for the Shares, as is the case for all equity securities traded on the Exchange (including exchange-traded funds). In addition, there is a considerable amount of information about gold and currency prices and gold and currency markets available on
Investors may obtain on a 24-hour basis gold pricing information based on the spot price for an ounce of Gold and pricing information for the Reference Currencies from various financial information service providers, such as Reuters and Bloomberg.
Reuters and Bloomberg, for example, provide at no charge on their Web sites delayed information regarding the spot price of Gold and last sale prices of Gold futures, as well as information about news and developments in the gold market. Reuters and Bloomberg also offer a professional service to subscribers for a fee that provides information on Gold prices directly from market participants. Complete real-time data for Gold futures and options prices traded on the COMEX are available by subscription from Reuters and Bloomberg. There are a variety of other public Web sites providing information on gold, ranging from those specializing in precious metals to sites maintained by major newspapers. In addition, the LBMA Gold Price is publicly available at no charge at
In addition, Reuters and Bloomberg, for example, provide at no charge on their Web sites delayed information regarding the spot price of each Reference Currency, as well as information about news and developments in the currency markets. Reuters and Bloomberg also offer a professional service to subscribers for a fee that provides information on currency transactions directly from market participants. Complete real-time data for currency transactions are available by subscription from Reuters and Bloomberg. There are a variety of other public Web sites providing information about the Reference Currencies and currency transactions, ranging from those specializing in currency trading to sites maintained by major newspapers.
The Fund's Web site (
In addition, the Web site for the Fund will contain the following information, on a per Share basis, for the Fund: (a) The mid-point of the bid-ask price
The Fund will be subject to the criteria in NYSE Arca Equities Rule 8.201(e) for initial and continued listing of the Shares.
A minimum of 100,000 Shares will be required to be outstanding at the start of trading. The minimum number of shares required to be outstanding is comparable to requirements that have been applied to previously listed shares of the Sprott Physical Gold Trust, ETFS Trusts, streetTRACKS Gold Trust, the iShares COMEX Gold Trust, and the iShares Silver Trust. The Exchange believes that the anticipated minimum number of Shares outstanding at the start of trading is sufficient to provide adequate market liquidity.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Fund subject to the Exchange's existing rules governing the trading of equity securities. Trading in the Shares on the Exchange will occur in accordance with NYSE Arca Equities Rule 7.34(a). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
Further, NYSE Arca Equities Rule 8.201 sets forth certain restrictions on ETP Holders acting as registered Market Makers in the Shares to facilitate surveillance. Pursuant to NYSE Arca Equities Rule 8.201(g), an ETP Holder acting as a registered Market Maker in the Shares is required to provide the Exchange, upon request, with information relating to its trading in the underlying gold, related futures or options on futures, or any other related derivatives. Under NYSE Arca Equities Rule 10.2, in the course of an investigation by the Exchange, the Exchange may request from ETP Holders documentary materials and other information, including trading records, regarding trading in currencies and currency derivatives. In addition, Commentary .04 of NYSE Arca Equities Rule 6.3 requires an ETP Holder acting as a registered Market Maker, and its affiliates, in the Shares to establish, maintain and enforce written policies and procedures reasonably designed to prevent the misuse of any material nonpublic information with respect to such products, any components of the related products, any physical asset or commodity underlying the product, applicable currencies, underlying indexes, related futures or options on futures, and any related derivative instruments (including the Shares).
As a general matter, the Exchange has regulatory jurisdiction over its ETP Holders and their associated persons, which include any person or entity controlling an ETP Holder. A subsidiary or affiliate of an ETP Holder that does business only in commodities or futures contracts would not be subject to Exchange jurisdiction, but the Exchange could obtain information regarding the activities of such subsidiary or affiliate through surveillance sharing agreements with regulatory organizations of which such subsidiary or affiliate is a member.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares.
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
Also, pursuant to NYSE Arca Equities Rule 8.201(g), the Exchange is able to obtain information regarding trading in the Shares and the underlying gold, gold futures contracts, options on gold futures, or any other gold derivative, through ETP Holders acting as registered Market Makers, in connection with such ETP Holders' proprietary or customer trades through ETP Holders which they effect on any relevant market.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
All statements and representations made in this filing regarding (a) the description of the portfolio, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange rules and surveillance procedures shall constitute continued listing requirements for listing the Shares of the Fund on the Exchange.
The issuer has represented to the Exchange that it will advise the Exchange of any failure by the Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements. If the Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Equities Rule 5.5(m).
Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Baskets (including noting that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) how information regarding the IIV is disseminated; (4) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; (5) the possibility that trading spreads and the resulting premium or discount on the Shares may widen as a result of reduced liquidity of gold trading during the Core and Late Trading Sessions after the close of the major world gold markets; and (6) trading information. For example, the Information Bulletin will advise ETP Holders, prior to the commencement of trading, of the prospectus delivery requirements applicable to the Fund. The Exchange notes that investors purchasing Shares directly from the Fund (by delivery of the Creation Basket Deposit) will receive a prospectus. ETP Holders purchasing Shares from the Fund for resale to investors will deliver a prospectus to such investors.
In addition, the Information Bulletin will reference that the Fund is subject to various fees and expenses as will be described in the Registration Statement. The Information Bulletin will also reference the fact that there is no regulated source of last sale information regarding physical gold, that the Commission has no jurisdiction over the trading of gold as a physical commodity, and that the CFTC has regulatory jurisdiction over the trading of gold futures contracts and options on gold futures contracts.
The Information Bulletin will also discuss any relief, if granted, by the Commission or the staff from any rules under the Act.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that there is a considerable amount of gold price and gold market information available on public Web sites and through professional and subscription services. Investors may obtain on a 24-hour basis gold pricing information based on the spot price for an ounce of gold from various financial information service providers. Investors may obtain gold pricing information based on the spot price for an ounce of gold from various financial information service providers. Current spot prices also are generally available with bid/ask spreads from gold bullion dealers. In addition, the Fund's Web site will provide pricing information for gold spot prices and the Shares. Market prices for the Shares will be available from a variety of sources including brokerage firms, information Web sites and other information service providers. The NAV of the Fund will be published by the Sponsor on each day that the NYSE Arca is open for regular trading and will be posted on the Fund's Web site. The IIV relating to the Shares will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session. In addition, the LBMA Gold Price is publicly available at no charge at
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding gold pricing.
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 Exchange believes the proposed rule change will enhance competition by accommodating Exchange trading of an additional exchange-traded product relating to physical gold.
No written comments were solicited or received with respect to the proposed rule change.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
1. The Shares would overlie both currencies and gold, and would be the first index-based issue of Commodity-Based Trust Shares, as well as the first issue of Commodity-Based Trust Shares to overlie an asset other than one or more commodities. The Commission seeks general comment on whether this unique combination of assets underlying the Shares, the Index, or the terms of the Gold Delivery Agreement raise any investor protection concerns or present any risk to fair and orderly trading in the Shares, including any particular risk regarding susceptibility of the Shares to manipulation.
2. NYSE Arca represents that the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by FINRA on behalf of the Exchange, are adequate to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange. While NYSE Arca Equities Rule 8.201(g) requires that an ETP Holder acting as a registered Market Maker in Commodity-Based Trust Shares disclose its and its employees' commodity and commodity-related accounts, currencies are outside of the scope of the rule. The Commission seeks comment on whether the Exchange also should obtain from such market makers in the Shares information relating to its and its
3. The Reference Currency Index values, which impact the NAV of the Fund, generally would be calculated using the Spot Rate for each Reference Currency. According to the Exchange, each Spot Rate would be calculated using observable data from arms-length transactions “where that data is available and reflects sufficient liquidity.”
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposal is consistent with Section 6(b)(5) or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposal should be approved or disapproved by October 13, 2016. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by October 27, 2016. The Commission asks that commenters address the sufficiency of the Exchange's statements in support of the proposal, which are set forth in Amendment No. 2, in addition to any other comments they may wish to submit about the proposed rule change.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
CHX proposes to amend the Rules of the Exchange (“CHX Rules”) to adopt the CHX Liquidity Taking Access Delay. The text of this 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 adopt the CHX Liquidity Taking Access Delay (“LTAD”). LTAD is designed to neutralize microsecond speed advantages exploited by low-latency market participants engaged in latency arbitrage
LTAD is a direct response to recent declines in CHX volume and liquidity in the SPDR S&P 500 trust exchange-traded fund (“SPY”),
The Exchange believes that the best way to minimize the effectiveness of latency arbitrage strategies on CHX with respect to resting
Additionally, the Exchange notes that adopting a symmetric delay and order types that would permit the Exchange to reprice resting orders based on undelayed market data (
In light of the above, the Exchange submits that the proposed rules for LTAD are designed to operate in a manner that is consistent with the Act in that they are designed to protect investors and the public interest, are not designed to permit unfair discrimination, and would not impose any unnecessary or inappropriate burden on competition.
Proposed Article 20, Rule 8(h) provides rules that comprehensively describe LTAD. Specifically, proposed paragraph (h) begins by stating that after initial receipt
(A) New incoming orders received during the Open Trading State
(B) Cancel and cancel/replace messages for delayed orders that have not yet been released from LTAD.
(C) The replace portion of a cancel/replace message where the cancel portion cancels a resting order and the replace portion would take liquidity from the CHX book.
Mechanically, upon initial receipt of a new incoming message, the Matching System would assign the message a unique sequence number, as it does currently, which, in addition to establishing processing and execution priority, will serve as the starting point for the Fixed LTAD Period, as described below. The Matching System would then initially evaluate the message to determine whether it is a delayable message.
Proposed paragraph (h) continues by providing that if a message is delayable, the message will be diverted into the LTAD queue and will remain delayed until it is released for processing. A delayed message shall become releasable 350 microseconds after initial receipt by the Exchange (“Fixed LTAD Period”),
The Exchange also proposes to make corresponding amendments to current Article 20, Rule 8(d) and (f) to contemplate LTAD. Specifically, the Exchange proposes to add the clause “subject to paragraph (h) below” at the end of current paragraph (d)(1) so that amended paragraph (d)(1) provides as follows:
Except for certain orders which shall be executed as described in Rule 8(e), below, an incoming order shall be matched against one or more resting orders in the Matching System, in the order in which the resting orders are ranked on the CHX book, pursuant to Rule 8(b) above, at the Working Price of each resting order, as defined under Article 1, Rule 1(pp), for the full amount of shares available at that price, or for the size of the incoming order, if smaller; subject to paragraph (h) below.
Moreover, proposed paragraph (h)(2) describes how LTAD would interact with the Exchange's current order routing protocol and provides that the portion of a Routable Order
Currently, the Exchange determines where and how to route an order on a price point-by-price point basis.
In light of the possible bifurcation of a Routable Order into an immediately routed portion and a delayed unrouted portion and the fact that the Exchange does not currently utilize any Router Feedback
Specifically, Immediate Feedback would permit the Exchange's Routing System to decrease the number of shares available at an away market by an amount equal to the size of the immediately routed portion of the Routable Order, on an order-by-order basis, with such feedback expiring as soon as: (i) One second passes or (ii) the Exchange receives new quote information from the away market.
Examples 1-3 illustrate the operation of LTAD. Examples 3 and 4 illustrate the operation of the proposed amended routing protocol.
Current Article 1, Rule 2(b)(3)(F) describes the MTP modifier, which prevents matches between orders that originate from the same MTP Trading Group or MTP sublevel thereunder.
Given that LTAD may result in newer orders (
(a)
(b)
Example 5 below illustrates how the amended MTP would operate in the context of LTAD.
The following Examples are illustrative of LTAD and related amendments to existing functionality, but do not exhaustively depict every possible scenario that may arise under LTAD. Moreover, the Examples do not necessarily depict the actual technical processes of prioritizing messages and executing orders.
Assume then that at 10:00:00.000000, the Exchange receives the following order:
Under this Example 1,
Under this Example 2:
•
•
• While
○ At 10:00:00.000365, the Matching System would compare the releasable time of
○ At 10:00:00.000415, the Matching System would then compare the releasable time of
○ At 10:00:00.000465, the Matching System would then compare the releasable time of
•
•
•
Under this Example 3:
•
•
•
•
•
•
•
•
Under this Example 4, the Immediate Feedback derived from the immediately routed portion of
Similarly, the Immediate Feedback derived from the immediately routed portion of
Under this Example 5, pursuant to the current MTP rules, MTP would be triggered and the unrouted remainder of
In the event the proposed rule change is approved by the SEC, the proposed rule change shall be operative pursuant to notice by the Exchange to its Participants. Prior to the operative date, the Exchange will ensure that policies and procedures are in place to allow Exchange operations personnel to effectively monitor the operation of LTAD.
The purpose of the CHX ETF Analysis is to demonstrate that latency arbitrage activity
•
•
•
•
•
•
•
•
During the After Period, the Exchange observed unusual messaging patterns in SPY whereby executions of large inbound Immediate Or Cancel (“IOC”)
As shown under
While the Exchange did not observe any discernable change on the NBBO spread in SPY during the After Period, the Exchange did observe a negative impact on the frequency at which CHX was at the NBBO in SPY and the frequency at which CHX displayed the largest quote at the NBBO in SPY during the After Period, while Control Securities experienced either smaller declines or no declines at all.
Specifically, the % of Time CHX Was At The NBB decreased from 23.8% in the Entry Month to 8.2% in July 2016;
Moreover, the % of Time CHX Was At The NBB And Was The Largest Bid At That Price decreased from 20% in the Entry Month to 2.3% in July 2016;
These calculation sets clearly show that SPY latency arbitrage activity resulted in less aggressively priced CHX displayed liquidity in SPY and smaller CHX displayed size at the NBBO, during the After Period. SPY latency arbitrage also negatively impacted the percentage of the time that CHX was at the NBBO and the percentage of the time CHX displayed the largest quote at the NBBO.
As shown under
Thus,
Although the Time-weighted Average NMS Size At The NBBO in SPY increased by 22.83% during the After Period, the increase in SPY did not follow much greater increases in the Time-weighted Average NBBO Size in the Control Group, which increased by 128.82% during the After Period.
Based on its observations of unusual messaging patterns in SPY, feedback from Participants and the analysis summarized above, the Exchange believes that the unusual messaging activity in SPY that was first observed in the Entry Month is attributed to SPY latency arbitrage activity. The market data shows that in response to the SPY latency arbitrage activity, CHX liquidity providers displayed smaller orders in SPY at less aggressive prices during the After Period relative to the Before Period and Entry Month. Moreover, in light of CHX's significant contribution to overall volume and liquidity in SPY during the Before Period and the Entry Month, diminished displayed liquidity at CHX has materially impaired displayed liquidity in SPY marketwide.
The calculations sets below were prepared with microsecond-level trade and quote record. Trade records include the date, microsecond-level timestamp, exchange, security symbol, price, and quantity of all trades reported to the consolidated tape. Quote records include the date, microsecond-level timestamp, exchange, security symbol, bid price, bid quantity, ask price, and ask quantity of all quotes reported to the consolidated tape. Only protected quotations are reported to the consolidated tape.
The Analysis Period for the calculations begins on August 1, 2015 and ends on July 31, 2016. Symbols SPY and three other Control Securities (
In the calculations below:
•
•
•
• A bid was
• At any microsecond, the
•
• At any microsecond, the
•
For the calculations in the table below:
The purpose of this analysis is to show that implementation of LTAD would not materially impact the ability of a random market participant not engaged in a latency arbitrage strategy to take displayed liquidity at CHX. This analysis assumes that LTAD would not materially change order sending behavior of Participants.
For the period of May 2016 through July 2016,
• There were a total of 18,316 orders at least partially executed.
• During the same period, the Exchange received 1,278 cancel messages to cancel resting orders after the resting order had been fully executed (“too-late-to-cancel” or “TLTC”).
• Of the 1,278 TLTCs, 412 TLTCs (32.24%) were received sooner than or exactly 350 microseconds after the execution (“TLTC
• Of the 412 TLTC
• Of the 866 TLTC
Thus, if LTAD had been in effect for the period of May 2016 through July 2016, LTAD (1) would have prevented up to 412 orders, virtually all of which the Exchange believes were submitted as part of SPY latency arbitrage activity, from being executed during the 350 microsecond Fixed LTAD Period and (2) would have had a negative impact on only 20 liquidity taking orders not attributed to SPY latency arbitrage activity. These 20 orders comprised 0.11% of the 18,316 orders executed during the period. That is, during the measurement period of 63 trading days, LTAD would have had an adverse effect on approximately one order every three trading days. Thus, LTAD can make a significant contribution to leveling the playing field between liquidity providers and latency arbitrageurs with minimal adverse effect on other liquidity taking orders.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act in general,
Specifically, the Exchange believes that the proposed rule change would remove impediments and perfect the mechanisms of a free and open market and, in general, protect investors and the public interest by enhancing displayed liquidity and price discovery for NMS securities by minimizing the effectiveness of latency arbitrage strategies that diminish quality and quantity of liquidity. As shown under the CHX ETF Analysis, latency arbitrage lessens competition among orders by dissuading liquidity providers from displaying large and aggressively priced orders, which in turn impairs market efficiency.
The Exchange also believes that the proposed amendments to the MTP order modifier would remove impediments and perfect the mechanisms of a free and open market and, in general, protect investors and the public interest, in that they are designed to avoid certain unintended consequences of LTAD on the MTP functionality. Specifically, since an order would be assigned a sequence number prior to being evaluated pursuant to LTAD,
Moreover, the Exchange submits that the proposed rules for LTAD are not designed to permit unfair discrimination, and would not impose any unnecessary or inappropriate burden on competition. Rather, by neutralizing speed advantages utilized by latency arbitrageurs, LTAD is designed to ensure that liquidity providers resume achieving their goals with respect to their liquidity provision strategies on CHX that, prior to January 2016, resulted in valuable liquidity in securities such as SPY being provided to the marketplace.
In finding that the rules pertaining to the IEX Delay did not permit unfair discrimination, and would not impose any unnecessary or inappropriate burden on competition, the Commission recognized that displayed limit orders or non-pegged non-displayed limit orders, the types of liquidity LTAD is designed to protect, would not benefit from the symmetric IEX Delay
For similar reasons, the Exchange also believes that the proposed rule change is consistent with Regulation NMS as LTAD would constitute a
Specifically, the Exchange believes that the proposed rule change is consistent with the “immedia[cy]” requirement of Rule 600(b)(3) as LTAD is a
Moreover, the Exchange believes that LTAD is consistent with the requirements of Rule 611.
Similarly, a portion of a Routable Order may be immediately routed away to execute against away protected quotations with the unrouted remainder being delayed before posting to the CHX book at a price that crosses such away protected quotations. This could result if the resting order on the CHX book that resulted in the unrouted remainder being delayed was cancelled before the unrouted remainder were released from LTAD. Under this scenario, given that LTAD is
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange believes that any burden on competition is necessary and appropriate in furtherance of the purposes of Section 6(b)(5) of the Act because LTAD is functionality that seeks to enhance liquidity and optimize price discovery by deemphasizing speed as a key to trading success in order to further serve the interests of investors and thereby removes impediments and perfects the mechanisms of a free and open market.
The Exchange further notes that market participants will continue to be able to obtain CHX book data via the SIPs or through the Exchange's proprietary book feed, the CHX Book Feed,
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove the proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1)
The Exchange proposes to, through its wholly-owned corporation NYSE Arca Equities, Inc. (“NYSE Arca Equities”), amend Rule 7.35P (Auctions) regarding Indicative Match Price. 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 proposes to amend Rule 7.35P, which governs how Auctions operate on the Exchange's Pillar trading platform. Specifically, the Exchange proposes to amend Rule 7.35P(a)(8) regarding Indicative Match Price. Under Rule 7.35(a)(8) [sic], Indicative Match Price means the best price at which the maximum volume of shares, including non-displayed quantity of Reserve Orders, is tradable in the applicable auction, subject to the Auction Collars. The Exchange proposes to specify, as proposed in Rule 7.35P(a)(8)(F), that unless the Indicative Match Price is based on the midpoint of an Auction NBBO, if the Indicative Match Price is not in the MPV
The Exchange initially filed to amend the definition of Indicative Match Price in a filing that is currently pending with the Commission.
The proposed rule change is consistent with section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
Specifically, the Exchange believes that the proposed amendment to Rule 7.35P(a)(8) would remove impediments to and perfect the mechanism of a free and open market and a national market system as it provides transparency regarding when the Exchange would round the Indicative Match Price if it is not in the MPV for an applicable security. In addition, the Exchange believes that the proposal to implement this change for all securities, not just Tick Pilot Securities, would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would ensure consistent treatment regarding the calculation of Indicative Match Price.
The calculation of the Indicative Match Price is essential to executing the maximum volume of shares in an auction and the Exchange believes adopting a rounding methodology when calculating the Indicative Match Price, as proposed herein, will promote transparency, clarity and certainty to the rule, which serves to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest.
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 change is not designed to address any competitive issue but rather to make an amendment to Rule 7.35P regarding the calculation of Indicative Match Price for orders executed in Auctions on the Exchange's Pillar trading platform.
No written comments were solicited or received with respect to the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Securities and Exchange Commission (“Commission”).
Notice of an application under Section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from Section 15(a) of the Act and Rule 18f-2 under the Act, as well as from certain disclosure requirements in Rule 20a-1 under the Act, Item 19(a)(3) of Form N-1A, Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and 22(c)(9) of Schedule 14A under the Securities Exchange Act of 1934, and Sections 6-07(2)(a), (b), and (c) of Regulation S-X (“Disclosure Requirements”). The requested exemption would permit an investment adviser to hire and replace certain sub-advisers without shareholder approval and grant relief from the Disclosure Requirements as they relate to fees paid to the sub-advisers.
Northern Lights Fund Trust (the “Trust”), a Delaware statutory trust registered under the Act as an open-end management investment company with multiple series, and Dearborn Capital Management, LLC, a limited liability company organized under Illinois law and registered as an investment adviser under the Investment Advisers Act of 1940 (“the “Adviser,” and, collectively with the Trust, the “Applicants”).
The application was filed March 11, 2015 and amended on April 14, 2016, and June 20, 2016.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on October 11, 2016, and should be accompanied by proof of service on the applicants, in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to Rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants: Trust Counsel: JoAnn Strasser, Esq., Thompson Hine LLP, 41 South High Street, Suite 1700, Columbus, OH 43215 and Trust: James P. Ash, Esq., Gemini Fund Services, LLC, 80 Arkay Drive, Suite 110, Hauppauge, NY 11788.
Deepak T. Pai, Senior Counsel, at (202) 551-6876, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. The Adviser will serve as the investment adviser to the Funds pursuant to an investment advisory agreement with the Trust (the “Advisory Agreement”).
2. Applicants request an exemption to permit the Adviser, subject to Board approval, to hire certain Sub-Advisers pursuant to Sub-Advisory Agreements and materially amend existing Sub-Advisory Agreements without obtaining the shareholder approval required under Section 15(a) of the Act and Rule 18f-2 under the Act.
3. Applicants agree that any order granting the requested relief will be subject to the terms and conditions stated in the application. Such terms and conditions provide for, among other safeguards, appropriate disclosure to Fund shareholders and notification about sub-advisory changes and enhanced Board oversight to protect the interests of the Funds' shareholders.
4. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provisions of the Act, or any rule thereunder, if such relief is necessary or appropriate in the public interest and consistent with the protection of investors and purposes fairly intended by the policy and provisions of the Act. Applicants believe that the requested relief meets this standard because, as further explained in the application, the Advisory Agreements will remain subject to shareholder approval, while the role of the Sub-Advisers is substantially similar to that of individual portfolio managers, so that requiring shareholder approval of Sub-Advisory Agreements would impose unnecessary delays and expenses on the Funds. Applicants believe that the requested relief from the Disclosure Requirements meets this standard because it will improve the Adviser's ability to negotiate fees paid to the Sub-Advisers that are more advantageous for the Funds.
For the Commission, by the Division of Investment Management, under delegated authority.
Small Business Administration.
30-Day notice.
The Small Business Administration (SBA) is publishing this notice to comply with requirements of the Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35), which requires agencies to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before October 24, 2016.
Comments should refer to the information collection by name and/or OMB Control Number and should be sent to:
Curtis Rich, Agency Clearance Officer, (202) 205-7030
Small Business Administration Surety Bond Guarantee Program was created to encourage surety companies to provide bonding for small contractor's. The information collection on this form from surety companies will be used to update status of successfully completed contracts and to provide a final accounting of contrator and surety fees due to SBA.
Small Business Administration.
30-day notice.
The Small Business Administration (SBA) is publishing this notice to comply with requirements of the Paperwork Reduction Act (PRA) (44 U.S.C. chapter 35), which requires agencies to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before October 24, 2016.
Comments should refer to the information collection by name and/or OMB Control Number and should be sent to:
Curtis Rich, Agency Clearance Officer, (202) 205-7030
SBA Forms 1405 and 1405A are used by Small Business Administration (SBA) examiners as part of their examination of licensed small business investment companies (SBICs). This information is collected from SBIC'S Stockholders and partners and provides independent third party confirmation of an SBIC's representations concerning its owners. The information helps SBA to evaluate the SBIC'S with applicable laws and regulations concerning capital requirements.
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Notice.
The FAA is issuing this notice to advise the public of a meeting of Thirty Second RTCA SC-213 Enhanced Flight Vision Systems/Synthetic Vision Systems (EFVS/SVS).
The meeting will be held October 24, 2016 from 09:00 a.m.-05:00 p.m. and October 25-27 from 8:30 a.m.-05:00 p.m.
The meeting will be held at: RTCA Headquarters, 1150 18th Street NW., Suite 910, Washington, DC 20036.
Rebecca Morrison at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of the Thirty Second RTCA SC-213 Enhanced Flight Vision Systems/Synthetic Vision Systems (EFVS/SVS). The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Twentieth RTCA SC-223 Aeronautical Mobile Airport Communication System Plenary Calling Notice.
The FAA is issuing this notice to advise the public of a meeting of Twentieth RTCA SC-223 Aeronautical Mobile Airport Communication System Plenary Calling Notice.
The meeting will be held November 08-09, 2016, 09:00 a.m.-05:00 p.m. and November 10, 2016 09:00 a.m.-12:00 p.m.
The meeting will be held at: RTCA Headquarters, 1150 18th Street NW., Suite 910, Washington, DC 20036.
Rebecca Morrison at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is hereby given for a meeting of the Twentieth RTCA SC-223 Aeronautical Mobile Airport Communication System Plenary Calling Notice. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Safety advisory notice.
The Pipeline and Hazardous Materials Safety Administration (PHMSA) is issuing a safety advisory notice to inform the public of the risks associated with transporting damaged, defective, or recalled lithium cells or batteries or portable electronic devices (PEDs), including Samsung Galaxy Note 7 smartphone devices recently recalled by the U.S. Consumer Product Safety Commission's (CPSC) [Recall No. 16-266]. PHMSA is issuing this safety advisory notice in conjunction with the CPSC recall to advise members of the public who wish to carry Samsung Galaxy Note 7 subject to CPSC Recall no. 16-266 aboard aircraft that they must take all of the following precautions:
• Turn off the device;
• Disconnect the device from any charging equipment;
• Disable all applications that could inadvertently activate the phone (
• Protect the power switch to prevent its unintentional activation; and
• Keep the device in carry-on baggage or on your person. (Do not place in checked baggage.)
Kevin Leary, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, telephone: (202) 366-8553.
Passengers or crew may only carry portable electronic devices on aircraft under the conditions of § 175.10(a)(18) of the HMR. Except as detailed below, electrical devices, such as batteries and battery-powered devices, which are likely to create sparks or generate a dangerous evolution of heat must not be transported in passenger or cargo aircraft, whether as cargo, carry-on, or in checked baggage, unless packaged in a manner, that would preclude such an occurrence. On September 2, 2016, Samsung issued a statement to consumers regarding the Samsung Galaxy Note 7. According to CPSC, “Samsung has received 92 reports of the batteries overheating in the U.S., including 26 reports of burns and 55 reports of property damage, including fires in cars and a garage.” Consequently, as a safety measure, CPSC has urged consumers to turn off, stop charging, and stop using these devices, and the FAA has advised such devices be turned off and not used or charged aboard aircraft and not be placed in checked baggage.
Federal hazardous materials transportation law (49 U.S.C. 5101-5128) authorizes the Secretary of Transportation (Secretary) to “prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce.” The Secretary delegated this authority to PHMSA in 49 CFR 1.97(b). In accordance with § 173.21(c) of the HMR, electrical devices such as batteries and battery-powered devices, which are likely to create sparks or generate a dangerous evolution of heat, are forbidden for transportation unless packaged in a manner which precludes such an occurrence. Therefore, passengers or crew may only transport on board an aircraft a Samsung Galaxy Note 7 subject to CPSC Recall no. 16-266 under the following conditions:
• Turn off the device;
• Disconnect the device from any charging equipment;
• Disable all Applications that could inadvertently activate the phone (
• Protect the power switch to prevent its unintentional activation; and
• Keep the device in carry-on baggage or on your person. (Do not place in checked baggage.)
Additional information pertinent to the traveling public is available through the DOT Safe Travel Web site (see
Lithium cells or batteries or portable electronic devices, that have been damaged or identified by the manufacturer as being defective for safety reasons, and have the potential of producing a dangerous evolution of heat, fire, or short circuit may only be transported by highway, rail or vessel in accordance with the provisions of 49 CFR 173.185(f) or under the conditions of a Special Permit or Approval issued by PHMSA's Associate Administrator for Hazardous Materials Safety. See
•
•
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of
Comments should be received on or before October 24, 2016 to be assured of consideration.
Send comments regarding the burden estimates, or any other aspect of the information collections, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by emailing
(a) Nothing in these amendments shall be construed to make punishable any act done or omitted prior to the effective date of this order that was not punishable when done or omitted.
(b) Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceedings, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to the effective date of this order, and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), determine endangered status under the Endangered Species Act of 1973, as amended, for two endemic American Samoan land snails (
This rule becomes effective October 24, 2016.
This final rule is available on the internet at
Mary Abrams, Field Supervisor, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Honolulu, HI 96850, by telephone 808-792-9400 or by facsimile 808-792-9581. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
Delineation of critical habitat requires, within the geographical area occupied by the species, identification of the physical or biological features essential to the species' conservation. Information regarding the life functions and habitats associated with these life functions is complex, and informative data are largely lacking for the five species from American Samoa. A careful assessment of the areas that may have the physical or biological features essential for the conservation of the species and that may require special management considerations or protections, and thus qualify for designation as critical habitat, will require a thorough assessment. We require additional time to analyze the best available scientific data in order to identify specific areas appropriate for critical habitat designation and to prepare and process a proposed rule. Accordingly, critical habitat is not determinable at this time.
• Habitat loss and fragmentation or degradation due to agriculture and urban development, nonnative ungulates, and nonnative plants.
• Collection for commercial purposes (snails only).
• Predation by nonnative snails and nonnative flatworms (snails only).
• Predation by feral cats and rats.
• Small numbers of individuals and populations.
Please refer to the proposed listing rule, published in the
We solicited comments during the 60-day public comment period (80 FR 61568, October 13, 2015), in a reopened comment period between January 5 and February 4, 2016 (81 FR 214, January 5, 2016), and during a public hearing held in American Samoa on January 21, 2016. We also contacted appropriate Federal and Territorial agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. In
During the comment periods, we received a total of 16 comment letters on the proposed listing of the 5 species from American Samoa. We received helpful information from the National Park of American Samoa about their surveys, monitoring, and mapping of natural resources in the park, and we have incorporated this information where relevant. In this final rule, we only address those comments directly relevant to the proposed listing of the five species. We received several comments that were not germane to the proposed listing of the five species (for example, information on other American Samoa species not included in the proposed rule); such comments are not addressed in this final rule.
One comment letter each was from the American Samoa Government Office of the Governor, the American Samoa Government Office of Samoan Affairs, and a Federal agency; and six comment letters were from individuals. Seven letters were responses requested from peer reviewers. The American Samoa Government Office of the Governor requested a public hearing and informational meetings regarding the proposed rule, which we provided, as described above. During the public hearing, four individuals made oral comments on the proposed rule.
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from 16 individuals with scientific expertise on American Samoa and bats, birds, and snails of South Pacific islands and their habitats, biological needs, and threats, including familiarity with the five species, the geographic region in which these species occur, and principles of conservation biology. We received responses from seven of these individuals.
We reviewed all comments received from the peer reviewers for substantive issues and new information regarding the listing of the five species. All seven peer reviewers generally supported our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final rule. Two peer reviewers agreed particularly with our evaluation of scientific data informing our assessment of the conservation status of the Pacific sheath-tailed bat. Similarly, three peer reviewers agreed particularly with our assessment of the conservation status of the two snails,
The same reviewer commented that grazing by goats greatly minimizes clutter resulting from a well-developed shrub layer, thereby opening foraging spaces for bats under the canopy. In addition, the reviewer cited reports that the bat was doing well in highly overgrazed forests on Yaqueta and Aiwa
Lastly, the reviewer added that, generally, a total release of the grazing pressure may allow rapid growth of shrubs and concomitant increase in understory clutter and thus potentially reduce foraging space for the Pacific sheath-tailed bat. Consequently, the peer reviewer suggested that any goat control efforts should be carefully planned to balance the importance of recruitment of tree canopy species and foraging spaces under the canopy.
The reviewer also commented that the description of the current Pacific sheath-tailed bat distribution in Fiji is overly optimistic and suggested revision to a more conservative description based on the bat's likely extirpation on Viti Levu, an island that represents more than half the land area in Fiji.
The same reviewer also requested clarification in the discussion regarding the threat to the bat from metapopulation breakdown, and in particular requested clarification regarding the location of significant source populations in Fiji. Finally, the reviewer commented that the future impact of sea level rise on populations of the Pacific sheath-tailed bat is not likely to be restricted to high islands and in fact is likely to be even greater on low islands, such as low limestone islands where this species is present.
The same reviewer commented that predation by the rosy wolf snail (
We consider the threat of predation by the rosy wolf snail to be one of several threats to the survival of
In general, commenters did not express strong support for or opposition to the proposed listing. Some commenters expressed concerns regarding the potential impacts of the proposed listing on public- and private-sector projects and on cultural practices. Other commenters suggested that additional information on the five species was needed. Our responses are provided below.
We encourage any project proponents or landowners to work closely with the Service if activities on their land may negatively affect listed species. If a Federal agency action is associated with the activity (
In American Samoa and Samoa, current levels of pesticide use are likely lower than several decades ago when their use, particularly during the years in which taro was grown on large scales for export (1975-1985), coincided with the decline of bats in both places and has been implicated as the cause (Tarburton 2002, p. 107). However, Grant
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. Once a species is listed as endangered or threatened under the Act, conservation measures provided to such species include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. For more information, please see Available Conservation Measures, below. The Service is required under section 4(f)(1) of the Act to prepare recovery plans for newly listed species, unless we determine that such a plan will not promote the conservation of the species. Reestablishing a threatened or endangered species in its former range is often necessary to enable or sustain recovery. Successful species recovery efforts necessitate the Service working collaboratively with Federal, State, and local agencies, conservation organizations, the business community, landowners, and other concerned citizens. Therefore, we look forward to working collaboratively with all stakeholders in efforts to conserve the mao and other listed species.
In preparing this final rule, we reviewed and fully considered comments from the peer reviewers and public on the proposed listings for the five species. This final rule incorporates the following substantive changes to our proposed rule, based on the comments we received:
(1) We have added habitat destruction or modification by feral goats as a threat to the continued existence or survival of the Pacific sheath-tailed bat in Fiji (see the discussion below under Pacific sheath-tailed bat, Summary of Factor A: The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range).
(2) We erroneously included “overutilization for scientific purposes” in our assessment of threats to
Other than the two changes just discussed and minor changes in response to recommendations, in this final rule, we made no substantive changes to the proposed rule.
The table below (table 1) provides the common name, scientific name, listing status, and range for the species that are the subjects of this final rule.
Please refer to the proposed listing rule (80 FR 61568; October 13, 2015) for geographic descriptions of the Samoan Archipelago, Samoa, Kingdom of Tonga, Republic of Fiji, Republic of Vanuatu, Territory of the Wallis and Futuna Islands and for additional factual details of the factors affecting the species, such as descriptions of nonnative plant species that affect the species' habitat. Our assessment evaluated the biological status of the five species and threats affecting their continued existence. The assessment was based upon the best available scientific and commercial data and, except where noted below (and in the Summary of Changes From Proposed Rule, above), has not changed as a result of the new information obtained during the comment periods.
The Pacific sheath-tailed bat is a member of the Emballonuridae, an Old World bat family that has an extensive distribution primarily in the tropics (Nowak 1994, pp. 90-91). A Samoan specimen was first described by Peale in 1848 as
The Pacific sheath-tailed bat was once common and widespread in Polynesia, eastern Melanesia, and Micronesia and is the only insectivorous bat recorded from a large part of this area (Hutson
Four subspecies of Pacific sheath-tailed bats are currently recognized:
All subspecies of the Pacific sheath-tailed bat appear to be cave-dependent, roosting during the day in a wide range of cave types, including overhanging cliffs, crevices, lava tubes, and limestone caves (Grant 1993, p. 51; Grant
In American Samoa, Amerson
In Samoa, the Pacific sheath-tailed bat is known from the two main islands of Upolu and Savaii, but the species has experienced a severe decline over the last several decades, and has been observed only rarely since Cyclones Ofa (1990) and Val (1991) (Lovegrove
In Tonga, the distribution of the Pacific sheath-tailed bat is not well known. It has been recorded on the island of Eua and Niaufoou (Rinke 1991, p. 134; Koopman and Steadman 1995, p. 7), and is probably absent from Ata and Late (Rinke 1991, pp. 132-133). In 2007, ten nights of acoustic surveys on Tongatapu and Eua failed to record any detections of this species (M. Pennay pers. comm. in Scanlon
In Fiji, the Pacific sheath-tailed bat is distributed throughout the archipelago, on large islands such as Vanua Levu and Taveuni, medium-sized islands in the Lau group (Lakeba, Nayau, Cicia, Vanua Balavu), and small islets such as Yaqeta in the Yasawa group and Vatu Vara and Aiwa in the Lau group (Palmeirim
The species is predicted to be extirpated or nearly so on Kadavu, Vanua Levu, and Fiji's largest island, Viti Levu, where it was known to be widespread until the 1970s (Palmeirim
In Vanuatu, the Pacific sheath-tailed bat is known from two museum specimens, one collected in 1929 and one collected before 1878, both on the main island of Espiritu Santo (Helgen and Flannery 2002, pp. 210-211). No subsequent expeditions have recorded sheath-tailed bats, suggesting that this species was either extirpated or perhaps never actually occurred in Vanuatu (Medway and Marshall 1975, pp. 32-33; Hill 1983, pp. 140-142; Flannery 1995, p. 326; Helgen and Flannery 2002, pp. 210-211; Palmeirim
In summary, the Pacific sheath-tailed bat, once widely distributed across the southwest Pacific islands of American Samoa, Samoa, Tonga, and Fiji, has undergone a significant decline in numbers and contraction of its range. Reports of possible extirpation or extremely low numbers in American Samoa and Samoa, steep population declines in Fiji, and the lack of detections in Tonga and Vanuatu, suggest that the Pacific sheath-tailed bat is vulnerable to extinction throughout its range. The remaining populations of the Pacific sheath-tailed bat continue to experience habitat loss from deforestation and development, predation by introduced mammals, and human disturbance of roosting caves, all of which are likely to be exacerbated in the future by the effects of climate change (see Summary of Factors Affecting the Pacific Sheath-tailed Bat discussion below). In addition, low population numbers and the breakdown of the metapopulation equilibrium across its range render the remaining populations of Pacific sheath-tailed bat more vulnerable to chance occurrences such as hurricanes.
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the
Deforestation has caused the destruction and modification of foraging habitat of the Pacific sheath-tailed bat as a result of the loss of cover and reduction of available insect prey. The loss of native plant diversity associated with the conversion of native forests to agriculture and other uses usually results in a corresponding reduction in the diversity and number of flying insects (Hespenheide 1975, pp. 84, 96; Waugh and Hails 1983, p. 212; Tarburton 2002, p. 107). Deforestation results from logging, agriculture, development, and hurricanes (Government of Samoa 2001, p. 59; Wiles and Worthington 2002, p. 18). Based on the preference of the Mariana subspecies for foraging in forested habitats near their roost caves, Wiles
Deforestation has been extensive and is ongoing across the range of the Pacific sheath-tailed bat. On the island of Tutuila, American Samoa, agriculture and development cover approximately 24 percent of the island and are concentrated in the coastal plain and low-elevation areas where loss of forest is likely to have modified foraging habitat for sheath-tailed bats (American Samoa Community College (ASCC) 2010, p. 13). In Samoa, the amount of forested area declined from 74 to 46 percent of total land area between 1954 and 1990 (Food and Agricultural Organization (FAO) 2005 in litt.). Between 1978 and 1990, 20 percent of all forest losses in Samoa were attributable to logging, with 97 percent of the logging having occurred on Savaii (Government of Samoa 1998 in Whistler 2002, p. 132). Forested land area in Samoa continued to decline at a rate of roughly 2.1 percent or 7,400 ac (3,000 ha) annually from 1990 to 2000 (FAO 2005 in litt.). As a result, there is very little undisturbed, mature forest left in Samoa (Watling 2001, p. 175; FAO 2005 in litt.).
Today, only 360 ac (146 ha) of native lowland rainforests (below 2,000 ft or 600 m) remain on Savaii and Upolu as a result of logging, agricultural clearing, residential clearing (including relocation due to tsunami), and natural causes such as rising sea level and hurricanes (Ministry of Natural Resources and Environment (MNRE) 2013, p. 47).
On Upolu, direct or indirect human influence has caused extensive damage to native forest habitat (above 2,000 ft or 600 m) (MNRE 2013, p. 13). Although forested, almost all upland forests on Upolu are largely dominated by introduced species today. Savaii still has extensive upland forests, which are for the most part undisturbed and composed of native species (MNRE 2013, p. 40). Although the large Fijian islands still have some areas of native forest, much of it has been lost (
Overgrazing by nonnative feral goats has resulted in the destruction and degradation of forests on island ecosystems (Esselsytn
The National Park of American Samoa (NPSA) was established to preserve and protect the tropical forest and archaeological and cultural resources, to maintain the habitat of flying foxes, to preserve the ecological balance of the Samoan tropical forest, and, consistent with the preservation of these resources, to provide for the enjoyment of the unique resources of the Samoan tropical forest by visitors from around the world (Pub. L. 100-571, Pub. L. 100-336). Under a 50-year lease agreement between local villages, the American Samoa Government, and the Federal Government, approximately 8,000 ac (3,240 ha) of forested habitat on the islands of Tutuila, Tau, and Ofu are protected and managed, including suitable foraging habitat for the Pacific sheath-tailed bat (NPSA Lease Agreement 1993).
As of 2014, a total of approximately 58,176 ac (23,543 ha), roughly 8 percent of the total land area of Samoa (285,000 ha) was enlisted in terrestrial protected areas, with the majority located in five national parks covering a total of 50,629 ac (20,489 ha), overlapping several sites known to be previously occupied by the
Fiji currently has 23 terrestrial protected areas covering 188 sq mi (488 sq km) or 2.7 percent of the nation's land area (Fiji Department of Environment 2014, pp. 20-21). Most notably, on Taveuni Island, the Bouma National Heritage Park (3,500 ac (1,417 ha)), Taveuni Forest Reserve (27,577 ac (11,160 ha)), and Ravilevu Reserve (9.934 ac (4,020 ha)) may contain caves and could provide important foraging habitat for the Pacific sheath-tailed bat (Fiji Department of Environment 2011; Naikatini 2015, in litt.; Scanlon 2015a, in litt.). Additional areas of remnant forest and important bat habitat are also managed informally under traditional custodial management systems (Scanlon 2015a, in litt.).
Based on our review of the best available scientific and commercial information, habitat destruction and degradation by deforestation, as a result of logging and land-clearing for agriculture and other land-uses, is occurring throughout the range of the Pacific sheath-tailed bat. Although the conservation efforts described above provide some protection from timber harvesting and forest clearing for agriculture and development within protected areas, they do not provide protection of all of the sheath-tailed bat's habitat from these activities, or from grazing and browsing by feral goats or habitat degradation and destruction by hurricanes, such that listing is not warranted. Habitat destruction and modification and range curtailment are current threats to the Pacific sheath-tailed bat that are likely to persist in the future.
In the analysis for our proposed rule, we had no information indicating that the Pacific sheath-tailed bat is collected for commercial, recreational, scientific, or educational purposes. We have received no new information. When this final listing becomes effective (see
Predation by nonnative mammals (mammals that occur in an area as a result of introduction by humans) is a factor in the decline of the Pacific sheath-tailed bat throughout its range. Terrestrial predators may be able to take the bat directly from its roosts, which are often in exposed sites such as shallow caves, rock overhangs, or cave entrances. Domestic and feral cats (
Of the predators introduced to Fiji, cats are the most likely to prey on bats (Palmeirim
Rats (
In summary, nonnative mammalian predators such as rats and feral cats are present throughout the range of the Pacific sheath-tailed bat. Predation of related subspecies and other cave-roosting bats by rats and feral cats strongly suggests a high probability of predation of the Pacific sheath-tailed bat. Based on the above information, we conclude that predation by rats and feral cats is a current and future threat to the Pacific sheath-tailed bat throughout its range.
Disease may contribute to the decline of the Pacific sheath-tailed bat, especially because of the bat's communal roosting (Wiles and Worthington 2002, p. 13). Microchiropterans have been severely affected by certain diseases, such as white nose syndrome in North America; therefore, the possibility exists that an undetected disease has led or contributed to the extirpation of this species on several islands (Malotaux 2012a in litt.). However, disease has not been observed either in the Mariana or South Pacific subspecies of Pacific sheath-tailed bat (Palmeirim
We are unaware of any conservation actions planned or implemented at this time to abate the threats of predation by
In summary, based on the best available scientific and commercial information, we consider predation by nonnative mammals to be an ongoing threat to the Pacific sheath-tailed bat that will continue into the future. We do not find that disease is a threat to the Pacific sheath-tailed bat, or that it is likely to become one in the future.
The Act requires that the Secretary assess available regulatory mechanisms in order to determine whether existing regulatory mechanisms may be inadequate as designed to address threats to the species being evaluated (Factor D). Under this factor, we examine whether existing regulatory mechanisms are inadequate to address the potential threats to the Pacific sheath-tailed bat discussed under other factors. In determining whether the inadequacy of regulatory mechanisms constitutes a threat to the Pacific sheath-tailed bat, we analyzed the existing Federal, Territorial, and international laws and regulations that may address the threats to this species or contain relevant protective measures. Regulatory mechanisms, if they exist, may preclude the need for listing if we determine that such mechanisms adequately address the threats to the species such that listing is not warranted.
In American Samoa no existing Federal laws, treaties, or regulations specify protection of the Pacific sheath-tailed bat's foraging habitat from the threats of agriculture and development, protect its known roosting caves from disturbance, or address the threat of predation by nonnative mammals such as rats and feral cats. While some existing Territorial laws and regulations have the potential to afford the species some protection, their implementation does not achieve that result. The DMWR is given general statutory authority to “manage, protect, preserve, and perpetuate marine and wildlife resources” and to promulgate rules and regulations to this end (American Samoa Code Annotated (ASCA), title 24, chapter 3). This agency conducts monitoring surveys, conservation activities, and community outreach and education about conservation concerns. However, to our knowledge, DMWR has not used this authority to undertake conservation efforts for the Pacific sheath-tailed bat such as habitat protection and control of nonnative predators (DMWR 2006, pp. 79-80).
The Territorial Endangered Species Act provides for appointment of a Commission with the authority to nominate species as either endangered or threatened (ASCA, title 24, chapter 7). Regulations adopted under the Coastal Management Act (ASCA § 24.0501
Commercial hunting and exportation of the Pacific sheath-tailed bat is prohibited under ASCA, title 24, chapter 23, “Conservation of Flying Foxes,” which also authorizes and directs the ASG DMWR to monitor flying fox populations, protect roosting areas from disturbance, and conduct other activities to manage and protect the species. This law identifies the Pacific sheath-tailed bat as a “flying fox species” (ASCA § 24.2302), but it has not led to measures implemented to protect the Pacific sheath-tailed bat or its habitat from known threats. The sale and purchase of all native bats is prohibited, and the take, attempt to take, and hunting of all native bats are prohibited unless explicitly allowed during an officially proclaimed hunting season (ASAC § 24.1106); take is defined as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in such conduct (ASAC § 24.1101(f)). However, we do not consider hunting or other forms of utilization to be a threat to the Pacific sheath-tailed bat.
Under a 50-year lease agreement between local villages, the American Samoa Government, and the Federal Government, approximately 8,000 ac (3,240 ha) of forested habitat on the islands of Tutuila, Tau, and Ofu are protected and managed in the National Park of American Samoa (NPSA Lease Agreement 1993). There is the potential for development surrounding park in-holdings, but such forest clearing would be isolated and small in scale compared to the large tracts of forested areas protected. Although the lease agreement results in overall protection of the lands in the national park from development, this protection does not reduce or eliminate the range-wide threats to the Pacific sheath-tailed bat to the extent that listing is not warranted.
Under ASCA, title 24, chapter 06 (Quarantine), the director of the Department of Agriculture (DOA) has the authority to promulgate agriculture quarantine restrictions concerning animals. Using this authority, the DOA has restricted the importation of insects, farm animals, and “domestic pets,” including exotic animals, to entry by permit only (See ASAC § 24.0305
The Territorial Coastal Management Act establishes a land use permit (LUP) system for development projects and a Project Notification Review System (PNRS) for multi-agency review and approval of LUP applications (ASAC § 26.0206). The standards and criteria for review of LUP applications include requirements to protect Special Management Areas (SMA), Unique Areas, and “critical habitats” where “sustaining the natural characteristics is important or essential to the productivity of plant and animal species, especially those that are threatened or endangered” on all lands and in coastal waters in the territory not under federal management authority (ASCA § 24.0501
Nonetheless, these laws and regulations are designed to ensure that
In summary, some existing Territorial laws and regulatory mechanisms have the potential to offer some level of protection for the Pacific sheath-tailed bat and its habitat but are not currently implemented in a manner that would do so. The DMWR has not exercised its statutory authority to address threats, such as nonnative species, to the bat. The bat is not listed pursuant to the Territorial Endangered Species Act. The Coastal Management Act and its implementing regulations have the potential to address this threat more substantively, but are inadequately implemented. The lease agreements that establish the National Park of American Samoa do provide some protection of the bat's habitat from land-clearing for agriculture, but do not address other threats to the bat. Therefore, we conclude that regulatory mechanisms in American Samoa do not reduce or eliminate the threats to the Pacific sheath-tailed bat.
In Samoa, the Animals Ordinance 1960 and the Protection of Wildlife Regulations 2004 regulate the protection, conservation, and utilization of terrestrial or land-dwelling species (MNRE and the Secretariat of the Pacific Regional Environment Programme (SPREP) 2012, p. 5). These laws and regulations prohibit, and establish penalties for committing, the following activities: (1) The taking, keeping, or killing of protected and partially protected animal species; (2) harm of flying species endemic to Samoa; and (3) the export of any bird from Samoa (MNRE and SPREP 2012, pp. 5-6). As described above, the Pacific sheath-tailed bat is neither endemic to the Samoan archipelago, nor is it listed as a “flying species endemic to Samoa” under the Protection of Wildlife Regulations 2004. Therefore, it is not protected by the current regulations.
The Planning and Urban Management Act 2004 (PUMA) and PUMA Environmental Impact Assessment (EIA) Regulation (2007) were enacted to ensure all development initiatives are properly evaluated for adverse environmental impacts (MNRE 2013, p. 93). The information required under PUMA for Sustainable Management Plans (Para. 18, Consultation) and Environmental Impact Assessments (Para. 46, Matters the Agency shall consider) does not include specific consideration for species or their habitat (PUMA 2004, as amended). Other similar approval frameworks mandated under other legislation address specific stressors and activities. These include the permit system under the Lands Surveys and Environment Act 1989 for sand mining and coastal reclamation, and ground water exploration and abstraction permits under the Water Resources Act 2008 (MNRE 2013, p. 93). The PUMA process has been gaining in acceptance and use; however, information is lacking on its effectiveness in preventing adverse impacts to species or their habitats (MNRE 2013, p. 93).
The Forestry Management Act 2011 aims to provide for the effective and sustainable management and utilization of forest resources. This law creates the requirement for a permit or license for commercial logging or harvesting of native, agro-forestry, or plantation forest resources (MNRE and SPREP 2012, p. 18). Permitted and licensed activities must follow approved Codes of Practice, forestry harvesting plans, and other requirements set by the Ministry of Natural Resources and Environment. Certain restrictions apply to actions on protected lands such as national parks and reserves. Permits or licenses may designate certain areas for the protection of the biodiversity, endangered species, implementation of international conventions, or water resources or area determined to be of significance on which no forestry activities may be undertaken (Forestry Management Act 2011, Para. 57). Although this law includes these general considerations for managing forest resources, it does not specifically provide protection to habitat for the Pacific sheath-tailed bat, and it does not appear to have been effective for that purpose.
In Fiji, the Endangered and Protected Species Act (2002) regulates the international trade, domestic trade, possession, and transportation of species protected under CITES and other species identified as threatened or endangered under this act. Under the law, the Pacific sheath-tailed bat is recognized as an “indigenous species not listed under CITES.” Its recognition under the law can garner public recognition of the importance of conserving the bat and its habitat (Tuiwawa 2015, in litt.); however, because the focus of the legislation is the regulation of foreign and domestic trade, and the bat is not a species in trade, this law is not intended to provide protection for the bat or its habitat within Fiji. The best available information does not identify any laws or regulations protecting the habitat of the Pacific sheath-tailed bat in Fiji.
In Tonga, the Birds and Fish Preservation (Amendment) Act 1989 is a law to “make provision for the preservation of wild birds and fish.” The law protects birds and fish, and provides for the establishment of protected areas, but it does not specifically protect the Pacific sheath-tailed bat or its habitat (Kingdom of Tonga 1988, 1989).
In Vanuatu, the Environment Management and Conservation Act (2002) provides for conservation, sustainable development, and management of the environment of Vanuatu. Areas of the law that may apply to species protection are the Environmental Impact Assessment process, which includes an assessment of protected, rare, threatened, or endangered species or their habitats in project areas, laws on bioprospecting, and the creation of Community Conservation Areas for the management of unique genetic, cultural, geological, or biological resources (Environmental Management and Conservation Act, Part 3, Environmental Impact Assessment). Although the EMCA contains the regulatory provisions mentioned above, they do not sufficiently address the ongoing threats of deforestation, predation, and small population size for the Pacific sheath-tailed bat in Vanuatu. The Wild Bird Protection law (Republic of Vanuatu 2006) is limited to birds and does not offer protection to the Pacific sheath-tailed bat or its habitat.
Based on the best available information, some existing regulatory mechanisms have the potential to offer protection, but their implementation does not reduce or remove threats to the Pacific sheath-tailed bat. In American Samoa the DMWR has not exercised its statutory authority to address threats to the bat such as predation by nonnative species, the bat is not listed pursuant to the Territorial Endangered Species Act, and the Coastal Management Act's land use permitting process is implemented inadequately to reduce or remove the threat of habitat destruction or modification to the Pacific sheath-tailed bat. In Samoa, laws and regulations that provide for species protection do not include the bat in lists of protected species, and laws and regulations governing environmental review of development projects do not include consideration of native species or their habitat. Forestry management laws provide for protection of native species and habitat through permitting and licensing processes but have not resulted in amelioration of habitat loss in Samoa. Fiji's endangered species law is focused on trade, and the Pacific sheath-tailed bat is not a species in trade and derives no conservation benefit from this law. Laws and regulations governing management of wildlife and native forest in Tonga and Vanuatu do not provide specific protections for the bat or its habitat, or have not resulted in conservation of habitat sufficient to preclude the need to list Pacific sheath-tailed bat. In sum, we conclude that existing regulatory mechanisms do not address the threats to the Pacific sheath-tailed bat.
Disturbance of roosting caves has contributed to the decline of the Pacific sheath-tailed bat throughout its range. Disturbance of roost caves by humans is likely to have occurred as a result of recreation, harvesting of co-occurring bat species, and, more commonly, guano mining (Grant
In American Samoa, human disturbance at the two caves known to be historical roost sites for the bat is likely to be minimal. Guano mining occurred in the Anapeapea caves in the 1960s (Amerson
Goats are certain to enter caves for shelter from the sun and consequently can disturb roosting bats, although the extent of this disturbance is unknown (Scanlon 2015b, in litt.). Feral goats have been observed entering caves on Aguiguan Island for shelter, which disrupts colonies of the endangered swiftlet and is believed to disturb the Mariana subspecies of the Pacific sheath-tailed bat (Wiles and Worthington 2002, p. 17; Cruz
Populations of the Pacific sheath-tailed bat are concentrated in the caves where they roost, and chronic disturbance of these sites can result in the loss of populations, as described above. Because so few populations of this bat remain, loss of additional populations to roost disturbance further erodes its diminished abundance and distribution. Based on the above information, roost disturbance at caves accessible to humans and animals such as feral goats is a current threat and will likely continue to be a threat into the future.
The use of pesticides may negatively affect the Pacific sheath-tailed bat as a result of direct toxicity and a reduction in the availability of insect prey. Pesticides are known to adversely affect bat populations, either by secondary poisoning when bats consume contaminated insects or by reducing the availability of insect prey (Hutson
In American Samoa and Samoa, current levels of pesticide use are likely lower than several decades ago when their use, particularly during the years in which taro was grown on large scales for export (1975-1985), coincided with the decline of bats in both places and has been implicated as the cause (Tarburton 2002, p. 107). However, Grant
Although severe storms are a natural disturbance with which the Pacific sheath-tailed bat has coexisted for millennia, such storms exacerbate other threats to the species by adversely
The high winds, waves, strong storm surges, high rainfall, and flooding associated with hurricanes, particularly severe hurricanes (with sustained winds of at least 150 mi per hour or 65 m per second) cause direct mortality of the Pacific sheath-tailed bat. Cyclones Ofa (1990) and Val (1991) removed the dense vegetation that had obscured the entrance to the larger cave at Anapeapea Cove, inundated the cave with water, filled it with coral and fallen trees, and washed the cave walls clean (Craig
Hurricanes also cause direct mortality of the Pacific sheath-tailed bat as a result of the bats' inability to forage during extended periods of high wind or rain, during which they may starve. Cyclone Val (December 1991) remained stationary over the Samoan archipelago for 4 days, and Pacific sheath-tailed bats likely were unable to feed during this time (Grant
Hurricanes may also cause modification of the roosting habitat of the Pacific sheath-tailed bat by modifying vegetation in and around cave entrances and altering climate conditions within roosting caves as a result. Microchiropterans, such as the Pacific sheath-tailed bat, can spend over half their lives in their roosts; consequently, the microclimate of these habitats can exert a strong influence over their heat-energy balance (Campbell
Loss of forest cover and associated insect prey for bats as a result of hurricanes can reduce foraging opportunities. Following Cyclones Ofa (1990) and Val (1991), about 90 percent of the forests on Upolu and Savaii were blown over or defoliated (Park
The low numbers of individuals and populations of this subspecies place the Pacific sheath-tailed bat at great risk of extinction from inbreeding and stochastic events such as storms. The threat is significant for cave-dwelling species whose populations are often highly localized with few numbers of animals that can easily be lost in a severe storm, disease outbreak, or disturbance to the roost caves (Wiles and Worthington 2002, p. 20).
Species that undergo significant habitat loss and degradation and face other threats resulting in decline in numbers and range reduction are inherently highly vulnerable to extinction resulting from localized catastrophes such as severe storms or disease outbreaks, climate change effects, and demographic stochasticity (Shaffer 1981, p. 131; Gilpin and Soulé 1986, pp. 24-34; Pimm
The Pacific sheath-tailed bat is thought to have a metapopulation structure (Palmeirim
Our analyses under the Act include consideration of ongoing and projected changes in climate. Currently, there are no climate change studies that address impacts to the specific habitat of the Pacific sheath-tailed bat. There are, however, climate change studies that address potential changes in the tropical Pacific on a broader scale. In our analyses, we reference the scientific assessment and climate change predictions for the western Pacific region prepared by the Pacific Climate Change Science Program (PCCSP), a collaborative research partnership between the Australian Government and 14 Pacific Island countries, including Samoa, Tonga, Fiji, and Vanuatu (Australian BOM and CSIRO 2011 Vol. 1, p. 15). The assessment builds on the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), and presents regional predictions for the area roughly between 25° S. to 20° N. and 120° E. to 150° W. (excluding the Australian region south of 10° S. and west of 155° E.) (Australian BOM and CSIRO 2011 Vol. 1, pp. 14, 20). The findings for Samoa (13° S. and 171° E) may be used as a proxy for American Samoa (14 °S. and 170° W.).
The annual average air temperatures and sea surface temperatures are projected to increase in American Samoa, Samoa, Fiji, Tonga, and Vanuatu, as well as throughout the western Pacific region (Australian BOM and CSIRO 2011 Vol. 2, pp. 91, 198, 228, 258). The projected regional warming is around 0.5-1.0 °C by 2030, regardless of the emissions scenario. By 2055, the warming is generally 1.0-1.5 °C with regional differences depending on the emissions scenario. Projected changes associated with increases in temperature include, but are not limited to, changes in mean precipitation with unpredictable effects on local environments (including ecosystem processes such as nutrient cycling), increased occurrence of drought cycles, increases in the intensity and number of severe storms, sea-level rise, a shift in vegetation zones upslope, and shifts in the ranges and lifecycles of individual species (Loope and Giambelluca 1998, pp. 514-515; Pounds
In the western Pacific region, increased ambient temperatures are projected to lead to increases in annual mean rainfall, the number of heavy rain days (20-50 mm), and extreme rainfall events in American Samoa, Samoa Fiji, Tonga, and Vanuatu (Australian BOM and CSIRO 2011 Vol. 1, p. 178; Australian BOM and CSIRO 2011 Vol. 2, pp. 87-88, 194-195, 224-225, 254-255). Impacts of increased precipitation on the Pacific sheath-tailed bat are unknown.
Hurricanes are projected to decrease in frequency in this part of the Pacific but increase in severity as a result of global warming (Australian BOM and CSIRO 2011 Vol. 2, pp. 88, 195, 225, 255). The high winds, waves, strong storm surges, high rainfall, and flooding associated with hurricanes, particularly severe hurricanes (with sustained winds of 150 mi (240 km) per hour), have periodically caused great damage to roosting habitat of Pacific sheath-tailed bats and to native forests that provide their foraging habitat (Craig
In the western Pacific region, sea level is projected to rise 1.18 to 6.3 in (30 to 160 mm) by 2030, 2.6 to 12.2 in (70 to 310 mm) by 2055, and 8.3 in to 2 ft (210 to 620 mm) by 2090 under the high-emissions scenario (Australian BOM and CSIRO 2011 Vol. 2, pp. 91, 198, 228, 258). The Pacific sheath-tailed bat is known to roost in areas close to the coast and forage in the adjacent forested areas at or near sea-level, as well as inland and at elevations up to 2,500 ft (762 m). The impacts of projected sea-level rise on low-elevation and coastal roosting and foraging habitat are likely to reduce and fragment the bat's habitat on individual high islands.
In summary, although we lack information about the specific effects of projected climate change on the Pacific sheath-tailed bat, we anticipate that increased ambient temperature, precipitation, hurricane intensity, and sea-level rise and inundation would create additional stresses on the bat and on its roosting and foraging habitat because it is vulnerable to these disturbances. The risk of extinction as a result of the effects of climate change increases when a species' range and habitat requirements are restricted, its habitat decreases, and its numbers and number of populations decline (IPCC 2007, pp. 8-11). In addition, the fragmented range, diminished number of populations, and low total number of individuals have caused the Pacific sheath-tailed bat to lose redundancy and resilience rangewide. Therefore, we would expect the Pacific sheath-tailed bat to be particularly vulnerable to the habitat impacts of projected environmental effects of climate change (Loope and Giambelluca 1998, pp. 504-505; Pounds
We are unaware of any conservation actions planned or implemented at this time to abate the threats to the Pacific sheath-tailed bat from roost disturbance, low numbers, hurricanes, climate change effects, or breakdown of the metapopulation equilibrium.
In summary, based on the best scientific and commercial information available, we consider other natural and manmade factors to be current and ongoing threats to the Pacific sheath-tailed bat. Roost disturbance, small population size, and breakdown of the metapopulation dynamic are threats to the Pacific sheath-tailed bat and are likely to continue in the future. The bat's small and isolated remaining populations are vulnerable to natural environmental catastrophes such as hurricanes, and the threats of small population size and hurricanes are likely to continue into the future. Due to reduced levels of pesticide use and the uncertainty regarding impacts to this species, we do not consider the use of pesticides to be a threat to the Pacific sheath-tailed bat. We expect this species and its habitat to be particularly vulnerable to the environmental effects of climate change. Even though the specific and cumulative effects of climate change on the sheath-tailed bat are presently unknown and we are not able to determine with confidence the future magnitude of this threat, we anticipate that climate change will
In our analysis of the five factors, we found that the Pacific sheath-tailed bat is likely to be affected by loss of forest habitat, predation by nonnative mammals, roost disturbance, loss of range-wide metapopulation dynamics, and small population size. We also identify several potential sources of risk to the species (
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Pacific sheath-tailed bat. We find that the Pacific sheath-tailed bat is presently in danger of extinction throughout its entire range based on the severity and immediacy of the ongoing threats described above. Habitat loss and degradation due to deforestation (throughout the entire range) and overgrazing by goats (Fiji), predation by nonnative mammals, human disturbance of roost caves, and stochastic events such as hurricanes, floods, or disease outbreaks, which all pose a particular threat to the small and isolated remaining populations and probable low total abundance throughout its range, render the Pacific sheath-tailed bat in its entirety highly susceptible to extinction as a consequence of these imminent threats. The vulnerability of the species and its cave habitat to the impacts of predation and human disturbance is exacerbated by hurricanes and likely to be further exacerbated in the future by the effects of climate change, such as sea level rise, extreme rain events, and increased storm severity. The breakdown of the Pacific sheath-tailed bat's metapopulation structure is expected to reduce opportunities for repopulation following local extirpations of dwindling populations due to stochastic events. In addition, the continued decline of the last relatively large population of this species in Fiji further diminishes the probability of persistence throughout the remainder of its range where it is currently considered to be extirpated or nearly extirpated.
In summary, habitat destruction and modification from deforestation is a threat to the Pacific sheath-tailed bat that is occurring throughout its range (Factor A). The threat of predation by nonnative predators such as rats and feral cats is ongoing (Factor C). Human disturbance of roost caves, low numbers of individuals and populations and their concomitant vulnerability to catastrophic events such as hurricanes, and the breakdown of the metapopulation structure all are current threats to the bat as well (Factor E). All of these factors pose threats to the Pacific sheath-tailed bat, whether we consider their effects individually or cumulatively. Existing regulatory mechanisms and conservation efforts do not address the threats to the Pacific sheath-tailed bat (Factor D), and all of these threats will continue in the future.
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” Based on the severity and immediacy of threats currently affecting the species, we find that the Pacific sheath-tailed bat is presently in danger of extinction throughout its entire range. The imminent threats of habitat loss and degradation, predation by nonnative rats and cats, the small and declining number of individuals and populations, the effects of small population size, and stochastic events such as hurricanes render this species in its entirety highly susceptible to extinction; for this reason, we find that threatened species status is not appropriate for the Pacific sheath-tailed bat.
Therefore, on the basis of the best available scientific and commercial information, we are listing the Pacific sheath-tailed bat as endangered in accordance with sections 3(6) and 4(a)(1) of the Act. Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range. Because we have determined that the Pacific sheath-tailed bat is endangered throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37577, July 1, 2014).
The genus
The mao is a large honeyeater approximately 11 to 12 in (28 to 31 cm) long with dark plumage varying from blackish on the head and breast to olive-green on the wings, tail, and body (Stirnemann
The mao is endemic to the Samoan archipelago. The species was thought to
Butler and Stirnemann (2013, p. 30) provide the following information about the mao's habitat use. The birds occur only in forested areas with a canopy layer, including modified habitat such as plantations where large trees also are present. They do not occur in logged areas with no large trees or canopy. Mao are primarily found in the high canopy layer, but also spend considerable time foraging on the trunks of trees and feeding on nectar sources near the ground (such as ginger (family Zingiberaceae)) and in low bushes (such as
Stirnemann
The mao's diet consists primarily of nectar, and also includes some invertebrates and fruit (MNRE 2006, p. 11). Nectar is an especially important food source during the breeding season, and the mao will defend nectar patches (Butler and Stirnemann 2013, p. 30). The mao eats invertebrates by probing dead material and moss, and by gleaning from emerging leaves (Butler and Stirnemann 2013, p. 30). Females forage for invertebrates under dead leaves on the forest floor to feed their fledglings (Butler and Stirnemann 2013, p. 30). Fledglings solicit food from the female by begging continually from the forest floor (Butler and Stirnemann 2013, p. 28).
The mao was once found throughout Savaii and Upolu (Samoa) likely in forests ranging from the coast to mountain tops (MNRE 2006, p. 2). It is endemic to the islands of Savaii and Upolu, Samoa, and Tutuila Island, American Samoa (Engbring and Ramsey 1989, p. 68; Watling 2001, p. 174). The mao was observed during an 1839 expedition on Tutuila (Amerson
The mao is currently found only on the islands of Savaii and Upolu in Samoa (Amerson
The mao is likely extirpated from Tutuila Island in American Samoa (Freifeld 1999, p. 1,208). Surveys conducted on Tutuila Island in 1982 and 1986 and from 1992 to 1996 did not detect the mao (Amerson
A general decline in distribution and numbers has resulted in small, increasingly fragmented populations estimated to comprise fewer than 1,000 mature individuals (MNRE 2006, p. 4; Tipamaa 2007, in litt., cited in Birdlife International 2012; Stirnemann 2015, in litt.). The mao is listed as Endangered in the 2014 IUCN Red List (Birdlife International 2012). Endangered is IUCN's second most severe category of extinction assessment, which equates to a very high risk of extinction in the wild. IUCN criteria include the rate of decline, population size, area of geographic distribution, and degree of population and distribution fragmentation; however, IUCN rankings do not confer any actual protection or management.
Several thousand years of subsistence agriculture and more recent commercial agriculture has resulted in the alteration and great reduction in area of forests at lower elevations in the Samoan archipelago (Whistler 1994, p. 40; Mueller-Dombois and Fosberg 1998, p.
The loss of forested habitat in Samoa is a primary threat to the mao (MNRE 2006, p. 5). Between 1954 and 1990, the amount of forested area declined from 74 to 46 percent of total land area in Samoa (Food and Agricultural Organization (FAO) 2005 in litt.). Between 1978 and 1990, 20 percent of all forest losses in Samoa were attributable to logging, with 97 percent of the logging having occurred on Savaii (Government of Samoa 1998 in Whistler 2002, p. 132). Forested land area in Samoa continued to decline at a rate of roughly 2.1 percent or 7,400 ac (3,000 ha) annually from 1990 to 2000 (FAO 2005 in litt.). As a result, there is very little undisturbed, mature forest left in Samoa (Watling 2001, p. 175; FAO 2005 in litt.).
The clearing of land for commercial agriculture has been the leading cause of deforestation in Samoa—more so than plantations or logging (Whistler 2002, p. 131). The transition from subsistence agriculture to developing cash crops for export (
Savaii still has extensive upland forests that are for the most part undisturbed and composed of native species (MNRE 2013, p. 40). However, forest clearance remains an ongoing threat to the mao (MNRE 2006, p. 5). Logging is slowing down because the most accessible forest has largely been removed, but is an ongoing problem on Savaii despite years of effort to phase it out (MNRE 2006, p. 5; Atherton and Jeffries 2012, p. 17). Shifting or slash-and-burn cultivation is an increasing concern in upland forest that provides important refuges for the mao because farmers use forestry roads from heavily logged lowland forests to gain access to formerly inaccessible land (MNRE 2006, p. 5). For example, there is much concern about potential forest loss because of road that has been bulldozed into the cloud forest (above 3,280 ft (1,000 m)) on Savaii, apparently illegally (Atherton and Jeffries 2012, p. 16). Such roads provide vectors for invasive nonnative plant and animal species as well, thus exacerbating those threats to the mao and its habitat (Atherton and Jeffries 2012, p. 108).
Habitat quality has also degraded with the loss of closed forest space (MNRE 2006, p. 5; Butler and Stirnemann 2013, p. 22). An analysis in 1999 identified 32 percent of the total forest cover as “open” forest (less than 40 percent tree cover) and less than 0.05 percent as “closed” forest, largely as a result of damage from Cyclones Ofa and Val (Butler and Stirnemann 2013, p. 22). An additional 24 percent of the forest cover is classified as secondary re-growth forest. As a result, the montane forest in Samoa is now extremely open and patchy with fewer food resources for birds, including the mao (Butler and Stirnemann 2013, p. 22). The montane forests are also increasingly vulnerable to invasion by nonnative trees and other plants (Butler and Stirnemann 2013, p. 22), which adversely affect native forests through competition for light, nutrients, and water; chemical inhibition; and prevention of reproduction. Loss of forest is likely to affect the mao by reducing breeding, nesting, and foraging habitat, increasing forest fragmentation, and increasing the abundance and diversity of invasive species (Butler and Stirnemann 2013, p. 22).
On the island of Tutuila, American Samoa, agriculture and urban development covers approximately 24 percent of the island, and up to 60 percent of the island contains slopes of less than 30 percent where additional land clearing is feasible (ASCC 2010, p. 13; DWMR 2006, p. 25). Farmers are increasingly encroaching into some of the steep forested areas as a result of suitable flat lands already being occupied with urban development and agriculture (ASCC 2010, p. 13). Consequently, agricultural plots have spread from low elevations up to middle and some high elevations on Tutuila.
In summary, deforestation by land-clearing for agriculture has been the major contributing factor in the loss and degradation of forested habitat for the mao throughout its range in Samoa and American Samoa, and logging has been an additional major factor in loss and degradation of forest habitat in Samoa. The majority of the lowland forests have either been lost or fragmented by land-clearing for agriculture. Upland areas in Samoa have suffered extensive deforestation from logging and are increasingly at risk as agriculture and development expand into these areas. Based on the above information, we conclude that the threat of habitat destruction and modification by agriculture and development is a current threat to the mao and will continue into the future.
Nonnative plants are known to have invaded ecosystems in American Samoa and Samoa, with documented adverse impacts to native forests (Space and Flynn 2000, pp. 5, 12; Space and Flynn 2002, pp. 4-5; Whistler 2002, p. 122; Atkinson and Medeiros 2006, pp. 17-18; Craig 2009, pp. 94, 98; ASCC 2010, p. 22; NPSA 2012, in litt.; Atherton and Jeffries 2012, p. 103; Butler and Stirnemann 2013, p. 30; MNRE 2013, p. 29). The native flora of the Samoan archipelago (plant species that were present before humans arrived) consisted of approximately 550 taxa, 30 percent of which were endemic (species that occur only in the American Samoa and Samoa) (Whistler 2002, p. 8). An additional 250 plant species have been intentionally or accidentally introduced and have become naturalized, with 20 or more of these considered invasive or potentially invasive in American Samoa (Whistler 2002, p. 8; Space and Flynn 2000, pp. 23-24). Of these approximately 20 or more nonnative pest plant species, at least 10 have altered or have the potential to alter the habitat of the mao and the other 4 species proposed for listing (Atkinson and Medeiros 2006, p. 18; Craig 2009, pp. 94, 97-98; ASCC 2010, p. 15).
Nonnative plants can degrade native habitat in Pacific island environments by: (1) Modifying the availability of light through alterations of the canopy structure; (2) altering soil-water regimes; (3) modifying nutrient cycling; (4) ultimately converting native-dominated plant communities to nonnative plant communities; and (5) increasing the frequency of landslides and erosion (Smith 1985, pp. 217-218; Cuddihy and Stone, 1990, p. 74; Matson 1990, p. 245; D'Antonio and Vitousek
The invasive vines
Although the mao forage and occasionally nest in modified habitat, such as plantation areas where nonnative trees that provide nectar and nesting habitat (
Feral pigs (
Feral pigs are known to cause deleterious impacts to ecosystem processes and functions throughout their worldwide distribution (Aplet
In American Samoa, feral pigs continue to negatively affect forested habitats. Feral pigs have been present in American Samoa since humans first settled the islands (American Samoa Historic Preservation Office 2015, in litt.). In the past, hunting pressure kept their numbers down, however, increasing urbanization and increasing availability of material goods has resulted in the decline in the practice of pig hunting to almost nothing (Whistler 1992, p. 21; 1994, p. 41). Feral pigs are moderately common to abundant in many forested areas, where they spread invasive plants, damage understory vegetation, and destroy riparian areas by their feeding and wallowing behavior (DMWR 2006, p. 23; ASCC 2010, p. 15). Feral pigs are a serious problem in the NPSA because of the damage they cause to native vegetation through their rooting and wallowing (Whistler 1992, p. 21; 1994, p. 41; Hoshide 1996, p. 2; Cowie and Cook 1999, p. 48; Togia pers. comm. in Loope
In Samoa, feral pigs are present throughout lowland and upland areas on Savaii, and are considered to have a negative impact on the ecological integrity of upland forests of Savaii, an important conservation area for the mao and other rare species (Atherton and Jeffries 2012, p. 17). During recent surveys, feral pig activity was common at most sites in upland forests on Savaii, and was even detected at the upper range of the mao at an elevation of 4,921 ft (1,500 m) (Atherton and Jefferies 2012, pp. 103, 146).
Significant numbers of feral cattle were present in an upland site where their trampling had kept open grassy areas within forested flats, and where mao had previously been observed (Atherton and Jeffries 2012, pp. 103-105). Trampling in forested areas damages understory vegetation and is likely to reduce foraging opportunities for mao as well as provide vectors for invasion by nonnative plants. In summary, the widespread disturbance caused by feral ungulates is likely to continue to negatively impact the habitat of the mao. Based on the above information, we conclude that habitat destruction and modification by feral ungulates is a threat to the mao.
The National Park of American Samoa (NPSA) was established to preserve and protect the tropical forest and archaeological and cultural resources, to maintain the habitat of flying foxes, to preserve the ecological balance of the Samoan tropical forest, and, consistent with the preservation of these resources, to provide for the enjoyment of the unique resources of the Samoan tropical forest by visitors from around the world (Pub. L. 100-571, Pub. L. 100-336). Under a 50-year lease agreement between local villages, the American Samoa Government, and the Federal Government, approximately 8,000 ac (3,240 ha) of forested habitat on the islands of Tutuila, Tau, and Ofu are protected and managed (NPSA Lease Agreement 1993).
Several programs and partnerships to address the threat of nonnative plant species have been established and are ongoing in American Samoa. Since 2000, the NPSA has implemented an invasive plant management program that has focused on monitoring and removal of nonnative plant threats. The nonnative plant species prioritized for removal include the following:
The thrip
In 2004, the American Samoa Invasive Species Team (ASIST) was established as an interagency team of nine local government and Federal agencies. The mission of ASIST is to reduce the rate of invasion and impact of invasive species in American Samoa with the goals of promoting education and awareness on invasive species and preventing, controlling, and eradicating invasive species. In 2010, the U.S. Forest Service conducted an invasive plant management workshop for Territorial and Federal agencies, and local partners (Nagle 2010 in litt.). More recently, the NPSA produced a field guide of 15 invasive plants that the park and its partners target for early detection and response (NPSA 2012, in litt.).
In 1996, the NPSA initiated a feral pig control program that includes fencing and removal of pigs using snares in the Tutuila Island and Tau Island Units. Two fences have been constructed and several hundred pigs have been removed since 2007 (Togia 2015, in litt.). The program is ongoing and includes monitoring feral pig activity twice per year and additional removal actions as needed (Togia 2015, in litt.).
In 2006, the Government of Samoa developed a recovery plan for the mao. The recovery plan identifies goals of securing the mao, maintaining its existing populations on Upolu and Savaii, and reestablishing populations at former sites (MNRE 2006). The plan has eight objectives: (1) Manage key forest areas on Upolu and Savaii where significant populations of the mao remain; (2) carry out detailed surveys to identify the numbers of pairs and establish monitoring; (3) increase understanding of the breeding and feeding ecology; (4) establish populations on rat-free islands or new mainland sites (including feasibility of reintroduction to American Samoa); (5) evaluate development of a captive-management program; (6) develop a public awareness and education program; (7) develop partnerships to assist in the mao recovery; and (8) establish a threatened bird recovery group to oversee the implementation and review of this plan and other priority bird species. These objectives have not all been met, and currently funding is not available to update the plan (Stirnemann in litt., 2016). In 2012, a detailed study provided information on the mao's diet, habitat use, reproductive success, and survival, which are important life-history requirements that can be used to implement recovery efforts (Butler and Stirnemann 2013).
The Mt. Vaea Ecological Restoration Project surveyed and mapped the presence of native bird and plant species and invasive plant species within lowland forest habitat of the 454-ac (183-ha) Mt. Vaea Scenic Reserve on Upolu, Samoa (Bonin 2008, pp. 2-5). The project was envisioned as the first demonstration project of invasive species management and forest restoration in Samoa. Phase I of the project resulted in the development of a restoration plan recommending removal of five priority invasive plant species and planting of native tree species (Bonin 2008, pp. viii, 24). Phase 2 of the project resulted in identifying techniques for treatment of two problematic rubber species (
The Two Samoas Environmental Collaboration Initiative brings together government agencies, nongovernmental organizations, and institutions from American Samoa and Samoa and provides a platform for a single concerted effort to manage threats to environmental resources such as the management of fisheries, land-based sources of pollution, climate change, invasive species, and key or endangered species (MNRE 2014, p. 67). In 2010, a Memorandum of Understanding establishing the collaborative effort between the two countries was signed by the two agencies responsible for conservation of species and their habitats, MNRE (Samoa) and DMWR (American Samoa). This initiative establishes a framework for efforts to recover the mao in American Samoa and Samoa.
In summary, based on the best available scientific and commercial information, we conclude that the destruction, modification, and curtailment of the mao's habitat and range are ongoing threats and these threats will continue into the future. The destruction and modification of habitat for the mao is caused by agriculture, logging, feral ungulates, and nonnative plant species, the impacts of all of which are exacerbated by hurricanes (see Factor E). The most serious threat identified has been the loss of forested habitat caused by forest clearing for agriculture, and logging. Although some protection of the mao's forest habitat in specific areas results from the efforts described above, none of these efforts reduces the threats of habitat loss to logging and conversion for agriculture (in Samoa) or habitat degradation by feral pigs, invasive, nonnative plants, and hurricanes (in Samoa and American Samoa) to the extent that listing is not warranted. All of these threats are ongoing and interact to exacerbate negative impacts and increase the vulnerability of extinction of the mao.
In the analysis for our proposed rule, we had no information indicating that overutilization has led to the loss of populations or a significant reduction in numbers of mao. We have received no new information. When this final listing becomes effective (see
Nest predation by rats has negative impacts on many island birds, including the mao (Atkinson 1977, p. 129; 1985, pp. 55-70; Butler and Stirnemann 2013, p. 29; O'Donnell
Butler and Stirnemann (2013, p. 29) captured footage of one nest depredation event by a black rat, which took a mao egg. The rat gained access to the egg by jumping on the incubating female's back from the branch above, driving the female off the nest. Combined with the disappearance of two females during the breeding season, this footage suggests that adult females are potentially vulnerable to predation on the nest at night, while they are incubating (Butler and Stirnemann 2013, p. 31), a phenomenon documented or suspected in other island bird species, which lack innate behavioral defenses against nonnative mammalian predators (see for example Robertson
The location of mao nests affects their vulnerability to predation by rats. Nests in close proximity to plantation habitats, where rats are most abundant, are particularly susceptible and experience low reproductive success (Butler and Stirnemann 2013, p. 31). Nests within 50 meters of a plantation are 40 percent more likely to be depredated than nests in forested areas farther from plantations (Butler and Stirnemann 2013, p. 31). Habitat loss from clearing of native forest combined with an expansion of plantations in Samoa may lead to an increase in rat populations (which find ample food in plantation habitats) and a potential for an increase in the mao nest predation rate.
Predation by feral cats has been directly responsible for the extinction of numerous birds on oceanic islands (Medina
Field and laboratory investigations suggest that avian malaria may be indigenous and non-pathogenic in American Samoa and, therefore, is unlikely to affect bird populations (Jarvi
A project to restore habitat for the mao and other priority species by removing the threat of predation by the Polynesian rat (
In summary, based on the best available scientific and commercial information, we conclude that disease is not a current threat to the mao, nor is it likely to become a threat in the future. Because of its low reproductive rate (1 egg per clutch) and vulnerability to predation at multiple life-history stages (eggs, chicks, fledglings, and adults), we conclude that the threat of predation by rats and feral cats is an ongoing threat to the mao that will continue into the future.
In determining whether the inadequacy of regulatory mechanisms constitutes a threat to the mao, we analyzed the existing Federal, Territorial, and international laws and regulations that may address the threats to this species or contain relevant protective measures.
The Government of Samoa has enacted numerous laws and regulations and has signed on to various international agreements that address a wide range of activities such as land tenure and development, biodiversity, wildlife protection, forestry management, national parks, biosecurity, and the extraction of water resources (MNRE 2013, pp. 148-149; MNRE 2014, p. 57).
The Protection of Wildlife Regulations 2004 regulates the protection, conservation, and utilization of terrestrial or land-dwelling species (MNRE and SPREP 2012, p. 5). These regulations prohibit, and establish penalties for committing, the following activities: (1) The taking, keeping, or
The Planning and Urban Management Act 2004 (PUMA) and PUMA Environmental Impact Assessment (EIA) Regulation (2007) were enacted to ensure all development initiatives are properly evaluated for adverse environmental impacts (MNRE 2013, p. 93). The information required for Sustainable Management Plans and Environmental Impact Assessments does not include specific consideration for species or their habitat (Planning and Urban Management Act 2004, as amended). Other similar approval frameworks mandated under other legislation address specific threats and activities. These include the permit system under the Lands Surveys and Environment Act 1989 for sand mining and coastal reclamation, and ground water exploration and abstraction permits under the Water Resources Act 2008 (MNRE 2013, p. 93). The PUMA process has been gaining in acceptance and use; however, information on its effectiveness in preventing adverse impacts to species or their habitats is lacking (MNRE 2013, p. 93).
The Forestry Management Act 2011 regulates the effective and sustainable management and utilization of forest resources. This law creates the requirement for a permit or license for commercial logging or harvesting of native, agro-forestry, or plantation forest resources (MNRE and SPREP 2012, p. 18). Permitted and licensed activities must follow approved Codes of Practice, forestry harvesting plans, and other requirements set by the Ministry of Natural Resources and Environment. License or permit holders must also follow laws relating to national parks and reserves, and all provisions of management plans for any national park or reserve. Under this act, lands designated as protected areas for the purposes of the protection of biodiversity and endangered species prohibit any clearing for cultivation or removal of forest items from protected areas without prior consent of the MNRE (Forestry Management Act 2011, Para. 57). Although this law includes these general considerations for managing forest resources, and possibly provides some protection from forest removal in the mao's habitat, it does not address habitat degradation by nonnative invasive plants and feral ungulates, or the impacts of permitted logging roads or illegal roads, both of which create vectors into native forest for these nonnative species (Atherton and Jeffries 2012, pp. 14-15).
The Quarantine (Biosecurity) Act 2005 forms part of the system to combat the introduction of invasive species and manage existing invasions. It is the main legal instrument to manage the deliberate or accidental importation of invasive species, pests, and pathogens and also to deal with such species should they be found in Samoa (MNRE and SPREP 2012, p. 38). This legislation also provides a risk assessment procedure for imported animals, plants, and living modified organisms. Although this law provides for management of invasive species, including those that degrade or destroy native forest habitat for the mao, we do not have information indicating the degree to which it has been implemented or effectiveness of such efforts.
In Samoa, there are several regulatory and nonregulatory protected area systems currently in place that protect and manage terrestrial species and their habitats; these include national parks, nature reserves, conservation areas, and village agreements. The National Parks and Reserves Act (1974) created the statutory authority for the protection and management of national parks and nature reserves. Conservation areas, unlike national parks and nature reserves, emphasize the importance of conservation, but at the same time address the need for sustainable development activities within the conservation area. Village agreements are voluntary agreements or covenants developed and signed by local villages and conservation organizations that stipulate specific conservation measures or land use prohibitions in exchange for significant development aid. As of 2014, a total of approximately 58,176 ac (23,543 ha), roughly 8 percent of the total land area of Samoa (285,000 ha) were enlisted in terrestrial protected areas, with the majority located in five national parks covering a total of 50,629 ac (20,489 ha) overlapping several key conservation areas identified for the mao (MNRE 2006, p. 14; MNRE 2014, p. 57). Although the protected status of these lands affords some protection to the mao's forest habitat within these areas, it does not address range-wide threats such as predation by nonnative predators or habitat degradation by nonnative plants.
Conservation International (CI) and the Secretariat of the Pacific Regional Environment Programme (SPREP) in collaboration with the Ministry of Natural Resources Environment identified eight terrestrial Key Biodiversity Areas (KBAs) intended to ensure representative coverage of all native ecosystems with high biodiversity values, five of which are targeted to benefit the conservation of the mao (CI
In 2006, the Government of Samoa developed a 10-year recovery plan for the mao. The recovery plan identifies goals of securing the mao, maintaining its existing populations on Upolu and Savaii, and reestablishing populations at former sites (MNRE 2006). This plan is nonregulatory in nature, its goals have not been met, and as of this writing, resources are not available to update and renew the plan (Stirnemann 2016, in litt.).
In summary, existing regulatory mechanisms have the potential to address the threat of habitat destruction and degradation to the mao in Samoa, and provide some benefit to the species in this regard. However, these policies and legislation do not reduce or eliminate the threats to the mao in Samoa such that listing is not warranted.
In American Samoa no existing Federal laws, treaties, or regulations specify protection of the mao's habitat from the threat of deforestation, or address the threat of predation by nonnative mammals such as rats and feral cats. However, some existing Territorial laws and regulations have the potential to afford the species some protection, but their implementation does not achieve that result. The DMWR
The Territorial Endangered Species Act provides for appointment of a Commission with the authority to nominate species as either endangered or threatened (ASCA, title 24, chapter 7). Regulations adopted under the Coastal Management Act (ASCA § 24.0501
Under ASCA, title 24, chapter 08 (Noxious Weeds), the Territorial DOA has the authority to ban, confiscate, and destroy species of plants harmful to the agricultural economy. Similarly, under ASCA, title 24, chapter 06 (Quarantine), the director of DOA has the authority to promulgate agriculture quarantine restrictions concerning animals. These laws may provide some protection against the introduction of new nonnative species that may have negative effects on the mao's habitat or become predators of the mao, but these regulations do not require any measures to control invasive nonnative plants or animals that already are established and proving harmful to native species and their habitats (DMWR 2006, p. 80) (see Factor D for the Pacific sheath-tailed bat, above).
As described above, the Territorial Coastal Management Act establishes a land use permit (LUP) system for development projects and a Project Notification Review System (PNRS) for multi-agency review and approval of LUP applications (ASAC § 26.0206). The standards and criteria for review of LUP applications include requirements to protect Special Management Areas (SMA), Unique Areas, and “critical habitats” (ASCA § 24.0501
In summary, existing Territorial laws and regulatory mechanisms have the potential to offer some level of protection for the mao and its habitat if it were to be reintroduced to American Samoa but are not currently implemented in a manner that would do so. The DMWR has not exercised its statutory authority to address threats to the mao such as predation by nonnative predators; the mao is not listed pursuant to the Territorial Endangered Species Act; and the Coastal Management Act and its implementing regulations have the potential to address the threat of habitat loss to deforestation more substantively, but the implementation of this law does not address the threats to the mao.
Based on the best available information, no existing Federal regulatory mechanisms address the threats to the mao. Some existing regulatory mechanisms in Samoa and American Samoa have the potential to offer some protection of the mao and its habitat, but their implementation does not reduce or remove threats to the species such as habitat destruction or modification or predation by nonnative species such that listing is not warranted. For these reasons, we conclude that existing regulatory mechanisms do not address the threats to the mao.
Hurricanes are a common natural disturbance in the tropical Pacific and have occurred in the Samoan archipelago with varying frequency and intensity (see Factor E discussion for the Pacific sheath-tailed bat). Catastrophic events such as hurricanes can be a major threat to the persistence of species already experiencing population-level impacts of other stressors (MNRE 2006, p. 8). Two storms in the 1990s, Cyclones Ofa (1990) and Val (1991), severely damaged much of the remaining forested habitat in Samoa, reducing forest canopy cover by 73 percent (MNRE 2006, pp. 5, 7). In addition, Cyclone Evan struck Samoa in 2012 causing severe and widespread forest damage, including defoliation and downed trees in 80 to 90 percent of the Reserves and National Parks on Upolu (Butler and Stirnemann 2013, p. 41). Secondary forests also were severely damaged by the storm, and most trees in the known mao locations were stripped of their leaves, fruits, and flowers (Butler and Stirnemann 2013, p. 41). Hurricanes thus exacerbate forest fragmentation and invasion of native forests by nonnative species, stressors that reduce breeding, nesting, and foraging habitat for the mao (see Factor A, above). Although severe storms are a natural disturbance with which the mao has coexisted for millennia, such storms exacerbate the threats to its remaining small, isolated populations by at least temporarily damaging or redistributing habitat and food resources for the birds and causing direct mortality of individuals (Wiley and Wunderle 1993, pp. 340-341; Wunderle and Wiley 1996, p. 261). If the mao was widely distributed, had ample habitat and sufficient numbers, and were not under chronic pressure from anthropogenic threats such as introduced predators, it might recover from hurricane-related mortality and the temporary loss or redistribution of resources in the wake of severe storms. However, this species' current status makes it highly vulnerable to catastrophic chance events, such as hurricanes, which occur frequently throughout its range in Samoa and American Samoa.
Species with low numbers of individuals, restricted distributions, and small, isolated populations are often more susceptible to extinction as a result of natural catastrophes such as
We consider the mao to be vulnerable to extinction because of threats associated with its low number of individuals—perhaps not more than a few hundred birds—and low numbers of populations. These threats include environmental catastrophes, such as hurricanes, which could immediately extinguish some or all of the remaining populations; demographic stochasticity that could leave the species without sufficient males or females to be viable; and inbreeding depression or loss of adaptive potential that can be associated with loss of genetic diversity and result in eventual extinction (Shaffer 1981, p. 131; Lacy 2000, pp. 40, 44-46). Combined with ongoing habitat destruction and modification by logging, agriculture, development, nonnative plant species, and feral ungulates (Factor A) and predation by rats and feral cats (Factor C), the effects of these threats to small populations further increases the risk of extinction of the mao.
Our analyses under the Act include consideration of ongoing and projected changes in climate (see Factor E discussion for the Pacific sheath-tailed bat). The magnitude and intensity of the impacts of global climate change and increasing temperatures on western tropical Pacific island ecosystems currently are unknown. In addition, there are no climate change studies that address impacts to the specific habitats of the mao. The scientific assessment completed by the Pacific Science Climate Science Program provides general projections or trends for predicted changes in climate and associated changes in ambient temperature, precipitation, hurricanes, and sea level rise for countries in the western tropical Pacific region including Samoa (used also as a proxy for American Samoa) (Australian BOM and CSIRO 2011, Vol. 1 & Vol. 2; see Factor E discussion for the Pacific sheath-tailed bat for summary).
Although we do not have specific information on the impacts of the effects of climate change to the mao, increased ambient temperature and precipitation, and increased severity of hurricanes, would likely exacerbate other threats to this species as well as provide additional stresses on its habitat. The probability of species extinction as a result of climate change impacts increases when its range is restricted, habitat decreases, and numbers of populations decline (IPCC 2007, p. 48). The mao is limited by its restricted range and low numbers of individuals. Therefore, we expect this species to be particularly vulnerable to the environmental effects of climate change and subsequent impacts to its habitat, even though the specific and cumulative effects of climate change on the mao are presently unknown and we are not able to determine the magnitude of this future threat with confidence. Although we cannot predict the timing, extent, or magnitude of specific impacts, we do expect the effects of climate change to exacerbate the current threats to these species, such as habitat loss and degradation.
We are unaware of any conservation actions planned or implemented at this time to abate the threats of hurricanes and low numbers of individuals or the effects of climate change that negatively impact the mao. However, the completion of a plan for the mao's recovery in Samoa in 2006, basic research on the species' life-history requirements, population monitoring, and cooperation between the Governments of American Samoa and Samoa may contribute to the conservation of the mao.
In our analysis of the five factors, we found that the mao is likely to be affected by loss of forest habitat, predation by nonnative mammals, and the vulnerability of its small, isolated population to chance demographic and environmental occurrences. In addition, increased ambient temperature and storm severity resulting from climate change are likely to exacerbate other, direct threats to the mao and in particular place additional stress on its habitat; these effects of climate change are projected to increase in the future. Multiple stressors acting in combination have greater potential to affect the mao than each factor alone. For example, projected warmer temperatures and increased storm severity may enhance the spread of nonnative invasive plants in the mao's forest habitat. The combined effects of environmental, demographic, and catastrophic-event stressors, especially on a small population, can lead to a decline that is unrecoverable and results in extinction (Brook
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to mao. This large honeyeater endemic to the Samoan archipelago is vulnerable to extinction because of the loss and degradation of its forested habitat, predation by nonnative mammals, and the impact of stochastic events to species that are reduced to small population size and limited distribution.
The threat of habitat destruction and modification from agriculture, logging, and development, nonnative plants, and nonnative ungulates is occurring throughout the range of the mao, and is not likely to be reduced in the future (Factor A). The threat of predation from nonnative predators such as rats and feral cats is ongoing and likely to continue in the future (Factor C). Additionally, the low numbers of individuals and populations of the mao render the species vulnerable to environmental catastrophes such as hurricanes, demographic stochasticity, and inbreeding depression (Factor E). These factors pose threats to the mao whether we consider their effects individually or cumulatively. Existing regulatory mechanisms and conservation efforts do not address the threats to this species (Factor D), and all of these threats are likely to continue in the future.
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” Based on the severity and immediacy of threats currently affecting the species, we find that the mao is presently in danger of extinction throughout its entire range. The imminent threats of habitat loss and degradation, predation by nonnative rats and feral cats, the small number of individuals, the effects
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range. Because we have determined that the mao is endangered throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37577, July 1, 2014).
The genus
The friendly ground-dove is a medium-sized dove, approximately 10 in (26 cm) long. Males have rufous-brown upperparts with a bronze-green iridescence, the crown and nape are grey, the wings rufous with a purplish luster, and the tail is dark brown. The abdomen and belly are dark brown-olive, while the breast shield is dark pink with a white border. Immature birds are similar to adults but are uniformly brown. Females are dimorphic in Fiji and Tonga, where a brown phase (tawny underparts and no breast shield) and pale phase (similar to males but duller) occur. In Samoa and American Samoa, only the pale phase is known to occur (Watling 2001, p. 117).
In American Samoa, the friendly ground-dove is typically found on or near steep, forested slopes, particularly those with an open understory and fine scree or exposed soil (Tulafono 2006, in litt.). Elsewhere the species is known to inhabit brushy vegetation or native forest on offshore islands, native limestone forest (Tonga), and forest habitats on large, high islands (Steadman and Freifeld 1998, p. 617; Clunie 1999, pp. 42-43; Freifeld
The friendly ground-dove is uncommon or rare throughout its range in Fiji, Tonga, Wallis and Futuna, Samoa, and American Samoa (Steadman and Freifeld 1998, p. 626; Schuster
In American Samoa, the species was first reported on Ofu in 1976 (Amerson
Under the Act, we have the authority to consider for listing any species, subspecies, or for vertebrates, any distinct population segment (DPS) of these taxa if there is sufficient information to indicate that such action may be warranted. To guide the implementation of the DPS provisions of the Act, we and the National Marine Fisheries Service (NOAA-Fisheries), published the Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (DPS Policy) in the
Under our DPS Policy, a population segment of a vertebrate taxon may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors (quantitative measures of genetic or morphological discontinuity may provide evidence of this separation); or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.
The American Samoa population of the friendly ground-dove, a cryptic, understory-dwelling dove not noted for long-distance dispersal, is markedly separate from other populations of the species. The genus
Based on our review of the available information, we have determined that the American Samoa population of the friendly ground-dove is markedly separate from other populations of the species due to geographic (physical) isolation from friendly ground-dove populations in Samoa, Tonga, and Fiji (Fig. 1). The geographic distance between the American Samoa population and other populations coupled with the low likelihood of frequent long-distance exchange between populations further separate the American Samoa population from other populations of this species throughout its range. Therefore, we have determined that the American Samoa population of friendly ground-dove meets a condition of our DPS policy for discreteness.
Under our DPS Policy, once we have determined that a population segment is discrete, we consider its biological and ecological significance to the larger taxon to which it belongs. This consideration may include, but is not limited to: (1) Evidence of the persistence of the discrete population segment in an ecological setting that is unusual or unique for the taxon, (2) evidence that loss of the population segment would result in a significant gap in the range of the taxon, (3) evidence that the population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range, or (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. At least one of these criteria is met. We have found substantial evidence that loss of the American Samoa population of the friendly ground-dove would constitute a significant gap in the range of this species, and thus this population meets our criteria for significance under our Policy.
The American Samoa population of the friendly ground-dove represents the easternmost distribution of this species. The loss of this population would truncate the species' range by approximately 100 mi (161 km), or approximately 15 percent of the linear extent of its range, which trends southwest-to-northeast from Fiji to Tonga to Wallis and Futuna, Samoa, and American Samoa. Unlike other Pacific Island columbids, this species does not fly high above the canopy; it is an understory species that forages largely on the ground and nests near the ground (Watling 2001, p. 118). Because of its flight limitations, the friendly ground-dove is unlikely to disperse over the long distances between American Samoa and the nearest surrounding populations. Therefore, the loss of the American Samoa population coupled with the low likelihood of recolonization from the nearest source populations in Samoa, Fiji, and Tonga would create a significant gap in the range of the friendly ground-dove.
Given that both the discreteness and the significance elements of the DPS policy are met for the American Samoa population of the friendly ground-dove, we find that the American Samoa population of the friendly ground-dove is a valid DPS. Therefore, the American Samoa DPS of friendly ground-dove is a listable entity under the Act, and we now assess this DPS's conservation status in relation to the Act's standards for listing, (
The loss or modification of lowland and coastal forests has been implicated as a limiting factor for populations of the friendly ground-dove and has likely pushed this species into more disturbed areas or forested habitat at higher elevations (Watling 2001, p. 118). Several thousand years of subsistence agriculture and more recent, larger-scale agriculture have resulted in the alteration and great reduction in area of forests at lower elevations in American Samoa (see Factor A discussion for the mao). On Ofu, the coastal forest where the ground-dove has been recorded, and which may be the preferred habitat for this species range-wide (Watling 2001, p. 118), largely has been converted to villages, grasslands, or coconut plantations (Whistler 1994, p. 127). However, none of the land-clearing or development projects proposed for Ofu or Olosega in recent years has been approved or initiated in areas known to be frequented by friendly ground-doves (Tulafono 2006, in litt.; Stein
The National Park of American Samoa (NPSA) was established to preserve and protect the tropical forest and
Past clearing for agriculture and development has resulted in the significant destruction and modification of coastal forest habitat for the American Samoa DPS of the friendly ground-dove. Land-clearing for agriculture is expected to continue in the future, but likely at a low rate. However, the degraded and fragmented status of the remaining habitat for the ground-dove is likely to be exacerbated by hurricanes (see Factor E discussion). While the NPSA provides some protection for the forested habitat required by the friendly ground-dove within the park, it is not of sufficient quantity to ameliorate the impacts from habitat loss elsewhere on Ofu and Olosega islands, or from habitat degradation and loss caused by hurricanes (inside and outside the park). Therefore, we consider habitat destruction and modification to be a threat to this DPS.
Pigeon-catching was a traditional practice in ancient Samoan society (Craig 2009, p. 104). Hunting of terrestrial birds and bats in American Samoa primarily for subsistence purposes continued until the documented decline of wildlife populations led to the enactment of a hunting ban and formal hunting regulations (Craig
Research suggests that avian malaria may be indigenous and non-pathogenic in American Samoa, and, therefore, is unlikely to limit populations of the friendly ground-dove (Jarvi
Depredation by introduced mammalian predators is the likely cause of widespread extirpation of the friendly ground-dove throughout portions of its range (Steadman and Freifeld 1998, p. 617; Watling 2001, p. 118). Three species of rats occur in American Samoa and are likely to be present on the islands of Ofu and Olosega: The Polynesian rat, Norway rat, and black rat (Atkinson 1985, p. 38; DMWR 2006, p. 22; Caruso 2015b, in litt.). Domestic cats are widespread on Ofu and have been observed in the proximity of areas where friendly ground-doves have been detected (Arcilla 2015, in litt.). Feral cats are likely to occur on Olosega because of its physical connection to Ofu.
Predation by rats is well known to have caused population decline and extirpation in many island bird species (Atkinson 1977, p. 129; 1985, pp. 55-70; O'Donnell
Predation by cats has been directly responsible for the extinction of numerous birds on oceanic islands (Medina
We are unaware of any conservation actions planned or implemented at this time to abate the threats of predation by feral cats or rats to the American Samoa DPS of the friendly ground-dove.
In summary, based on the best available scientific and commercial information, we conclude that disease is not a factor in the continued existence of the friendly ground-dove. Because
In American Samoa no existing Federal laws, treaties, or regulations specify protection of the friendly ground-dove's habitat from the threat of deforestation, or address the threat of predation by nonnative mammals such as rats and feral cats. However, some existing Territorial laws and regulations have the potential to afford the species some protection, but their implementation does not achieve that result. The DMWR is given statutory authority to “manage, protect, preserve, and perpetuate marine and wildlife resources” and to promulgate rules and regulations to that end (ASCA, title 24, chapter 3). This agency conducts monitoring surveys, conservation activities, and community outreach and education about conservation concerns. However, to our knowledge, the DMWR has not used this authority to undertake conservation efforts for the friendly ground-dove such as habitat protection and control of nonnative predators such as rats and cats (DMWR 2006, pp. 79-80).
The Territorial Endangered Species Act provides for appointment of a Commission with the authority to nominate species as either endangered or threatened (ASCA, title 24, chapter 7). Regulations adopted under the Coastal Management Act (ASCA § 24.0501
Under ASCA, title 24, chapter 08 (Noxious Weeds), the Territorial DOA has the authority to ban, confiscate, and destroy species of plants harmful to the agricultural economy. Similarly, under ASCA, title 24, chapter 06 (Quarantine), the director of DOA has the authority to promulgate agriculture quarantine restrictions concerning animals. These laws may provide some protection against the introduction of new nonnative species that may have negative effects on the friendly ground-dove's habitat or become predators of the species, but these regulations do not require any measures to control invasive nonnative plants or animals that already are established and proving harmful to native species and their habitats (DMWR 2006, p. 80) (see Factor D for the Pacific sheath-tailed bat, above).
As described above, the Territorial Coastal Management Act establishes a land use permit (LUP) system for development projects and a Project Notification Review System (PNRS) for multi-agency review and approval of LUP applications (ASAC § 26.0206). The standards and criteria for review of LUP applications include requirements to protect Special Management Areas (SMA), Unique Areas, and “critical habitats” (ASCA § 24.0501
In summary, existing Territorial laws and regulatory mechanisms have the potential to offer some level of protection for the American Samoa DPS of the friendly ground-dove and its habitat but are not currently implemented in a manner that would do so. The DMWR has not exercised its statutory authority to address threats to the ground-dove such as predation by nonnative predators; the species is not listed pursuant to the Territorial Endangered Species Act; and the Coastal Management Act and its implementing regulations have the potential to address the threat of habitat loss to deforestation more substantively, but this law is inadequately implemented. Based on the best available information, some existing regulatory mechanisms have the potential to offer some protection of the friendly ground-dove and its habitat, but their implementation does not reduce or remove threats to the species such as habitat destruction or modification or predation by nonnative species. For these reasons, we conclude that existing regulatory mechanisms do not address the threats to the American Samoa DPS of the friendly ground-dove.
Hurricanes may cause the direct and indirect mortality of the friendly ground-dove, as well as modify its already limited habitat (see Factor A above). This species has likely coexisted with hurricanes for millennia in American Samoa, and if the friendly ground-dove was widely distributed in American Samoa, had ample habitat and sufficient numbers, and was not under chronic pressure from anthropogenic threats such as habitat loss and introduced predators, it might recover from hurricane-related mortality and the temporary loss or redistribution of resources in the wake of severe storms. For example, Hurricanes Heta (in January 2004) and Olaf (in February 2005) destroyed suitable habitat for the friendly ground-dove at one of the areas on Olosega where this species was most frequently encountered; detections of ground-doves in other, less storm-damaged areas subsequently increased, suggesting they had moved from the area affected by the storms (Seamon 2005, in litt.; Tulafono 2006, in litt.). However, this species' current status in American Samoa makes it highly vulnerable to chance events, such as hurricanes.
Species with a low total number of individuals, restricted distributions, and small, isolated populations are often more susceptible to extinction as a result of natural catastrophes, demographic fluctuations, or inbreeding depression (Shaffer 1981, p. 131; see Factor E discussion for the Pacific sheath-tailed bat, above). The American Samoa DPS of the friendly ground-dove
Our analyses under the Act include consideration of ongoing and projected changes in climate (see Factor E discussion for the Pacific sheath-tailed bat). The magnitude and intensity of the impacts of global climate change and increasing temperatures on western tropical Pacific island ecosystems are currently unknown. In addition, there are no climate change studies that address impacts to the specific habitats of the American Samoa DPS of the friendly ground-dove. The scientific assessment completed by the Pacific Science Climate Science Program provides general projections or trends for predicted changes in climate and associated changes in ambient temperature, precipitation, hurricanes, and sea level rise for countries in the western tropical Pacific region including Samoa (Australian BOM and CSIRO 2011, Vol. 1 and 2; used as a proxy for American Samoa) (see Factor E discussion for the Pacific sheath-tailed bat).
Although we do not have specific information on the impacts of climate change to the American Samoa DPS of the friendly ground-dove, increased ambient temperature and precipitation, increased severity of hurricanes, and sea level rise and inundation would likely exacerbate other threats to its habitat. Although hurricanes are part of the natural disturbance regime in the tropical Pacific, and the friendly ground-dove has evolved in the presence of this disturbance, the projected increase in the severity of hurricanes resulting from climate change is expected to exacerbate the hurricane-related impacts such as habitat destruction and modification and availability of food resources of the friendly ground-dove, whose diet consists mainly of seeds, fruit, buds, and young leaves and shoots (Watling 2001, p. 118). The probability of species extinction as a result of climate change impacts increases when a species' range is restricted, its habitat decreases, and its numbers are declining (IPCC 2007, p. 8). The friendly ground-dove is limited by its restricted range, diminished habitat, and small population size. Therefore, we expect the friendly ground-dove to be particularly vulnerable to the environmental impacts of projected changes in climate and subsequent impacts to its habitat. Although we cannot predict the timing, extent, or magnitude of specific impacts, we do expect the effects of climate change to exacerbate the current threats to these species, such as habitat loss and degradation.
We are unaware of any conservation actions planned or implemented at this time to abate the threats of hurricanes, low numbers of individuals, and climate change effects that negatively affect the American Samoa DPS of the friendly-ground-dove.
In our analysis of the five factors, we found that the American Samoa DPS of the friendly ground-dove is likely to be affected by loss of forest habitat, especially in lowland and coastal areas, predation by nonnative mammals, and the vulnerability of its small, isolated population to chance demographic and environmental occurrences. We also identify the effects of climate change as another source of risk to the species because increased ambient temperature and storm severity resulting from climate change are likely to exacerbate other, direct threats to the ground-dove in American Samoa, and in particular place additional stress on its habitat; these effects of climate change are projected to increase in the future. Multiple stressors acting in combination have greater potential to affect the ground-dove than each factor alone. For example, projected warmer temperatures and increased storm severity will likely enhance the spread of nonnative invasive plants in the ground-dove's coastal forest habitat. The combined effects of environmental, demographic, and catastrophic-event stressors, especially on a small population, can lead to a decline that is unrecoverable and results in extinction (Brook
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the American Samoa DPS of the friendly ground-dove. The American Samoa DPS of the friendly ground-dove is vulnerable to extinction because of its reduced population size and distribution, habitat loss, and depredation by nonnative mammals.
The habitat of the American Samoa DPS of the friendly ground-dove remains degraded and destroyed by past land-clearing for agriculture, and hurricanes exacerbate the poor status of this habitat, a threat that is likely to continue in the future (Factor A) and worsen under the projected effects of climate change. The threat of predation by nonnative mammals such as rats and cats is a current threat and likely to continue in the future (Factor C). The DPS of the friendly ground-dove persists in low numbers of individuals and in few and disjunct populations on two small islands (Factor E), a threat that interacts synergistically with other threats. These factors pose threats to the American Samoa DPS of the friendly ground-dove, whether we consider their effects individually or cumulatively. Current Territorial wildlife laws and regulations and conservation efforts do not address the threats to this DPS (Factor D), and these threats will continue in the future.
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” Based on the severity and immediacy of threats currently affecting the species, we find that the American Samoa DPS of the friendly ground-dove is presently in danger of extinction throughout its range. The imminent threats of habitat
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range. Because we have determined that the DPS of the friendly ground-dove is endangered throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37577, July 1, 2014).
The Samoan partulid tree snails in the genera
The biology of Samoan partulid snails has not been extensively studied, but there is considerable information on the partulid snails of the Mariana Islands (Crampton 1925a, pp. 1-113; Cowie 1992, pp. 167-191; Hopper and Smith 1992, pp. 77-85) and Society Islands (Crampton 1925b, pp. 5-35; Crampton 1932, pp. 1-194; Murray
Partulids are slow growing and hermaphroditic (Cowie 1992, pp. 167, 174). Eggs develop within the maternal body and hatch within or immediately after extrusion; they may or may not receive nourishment directly from the parent prior to extrusion (Cowie 1992, p. 174). Some species in the family are known to be self-fertile, but most partulids rely predominantly on out-crossing (Cowie 1992, pp. 167, 174). Adult partulids generally live about 5 years and give birth about every 20 days, producing about 18 offspring per year (Cowie 1992, pp. 174, 179-180).
Partulids can have a single preferred host plant or multiple host plants, in addition to having preference toward anatomical parts of the plant (
Review of long-term changes in the American Samoa land snail fauna based on surveys from 1975 to 1998 and pre-1975 collections characterized 3 of 12 species as being stable in numbers, with the rest described as declining in numbers, including
The uneven distribution of the 1,102 live snails on Tutuila suggests an overall decline in distribution and abundance; 479 live snails were recorded at 3 survey sites in one area, 165 live snails were recorded at 7 survey sites, and fewer than 10 snails were recorded at each of the remaining 20 sites (Cowie and Cook 1999, p. 30). On Tutuila, the survey sites with the highest numbers of
Several thousand years of subsistence agriculture and more recent plantation agriculture has resulted in the alteration and great reduction in area of forests on the relatively flat land at lower elevations throughout American Samoa (Whistler 1994, p. 40; Mueller-Dombois and Fosberg 1998, p. 361). The threat of land conversion to unsuitable habitat (
On the island of Tutuila, the NPSA provides approximately 2,533 ac (1,025 ha) of forested habitat on Tutuila that is largely protected from clearing for agriculture and development and managed under a 50-year lease agreement with the American Samoa Government and multiple villages (NPSA Lease Agreement 1993). In addition, areas of continuous, undisturbed native forest on northwestern Tutuila outside of the NPSA boundaries may support additional populations of
The development of roads, trails, and utility corridors has also caused habitat destruction and modification in or adjacent to existing populations of
Feral pigs are known to cause deleterious impacts to ecosystem processes and functions throughout their worldwide distribution (Aplet
Erosion resulting from rooting and trampling by pigs impacts native plant communities by contributing to watershed degradation, alteration of plant nutrient status, and increasing the likelihood of landslides (Vitousek
Feral pigs have been present in American Samoa since humans settled these islands (American Samoa Historic Preservation Office 2015, in litt.). In the past, hunting pressure kept their numbers down, however, increasing urbanization and increasing availability of material goods has resulted in the decline in the practice of pig hunting to almost nothing (Whistler 1992, p. 21; 1994, p. 41). Feral pigs are moderately common to abundant in many forested areas, where they spread invasive plants, damage understory vegetation, and destroy riparian areas by their feeding and wallowing behavior (DMWR 2006, p. 23; ASCC 2010, p. 15). Feral pigs are a serious problem in the NPSA because of the damage they cause to native vegetation through their rooting and wallowing (Whistler 1992, p. 21; 1994, p. 41; Hoshide 1996, p. 2; Cowie and Cook 1999, p. 48; Togia pers. comm. in Loope
Nonnative plant species can seriously modify native habitat and render it unsuitable for native snail species (Hadfield 1986, p. 325). Although some Hawaiian tree snails have been recorded on nonnative vegetation, it is more generally the case that native snails throughout the Pacific are specialized to survive only on the native plants with
The native flora of the Samoan archipelago (plant species that were present before humans arrived) consisted of approximately 550 taxa, 30 percent of which were endemic (species that occur only in the American Samoa and Samoa) (Whistler 2002, p. 8). An additional 250 plant species have been intentionally or accidentally introduced and have become naturalized with 20 or more of these considered invasive or potentially invasive in American Samoa (Whistler 2002, p. 8; Space and Flynn 2000, pp. 23-24). Of these approximately 20 or more nonnative pest plant species, at least 10 have altered or have the potential to alter the habitat of the species listed in this final rule (Atkinson and Medeiros 2006, p. 18; Craig 2009, pp. 94, 97-98; ASCC 2010, p. 15).
Nonnative plants can degrade native habitat in Pacific island environments by: (1) Modifying the availability of light through alterations of the canopy structure; (2) altering soil-water regimes; (3) modifying nutrient cycling; (4) ultimately converting native-dominated plant communities to nonnative plant communities; and (5) increasing the frequency of landslides and erosion (Smith 1985, pp. 217-218; Cuddihy and Stone, 1990, p. 74; Matson 1990, p. 245; D'Antonio and Vitousek 1992, p. 73; Vitousek
For brief descriptions of the nonnative plants that impose the greatest negative impacts to the native habitats in American Samoa, please refer to the proposed rule (80 FR 61568; October 13, 2015). In summary, based on the habitat-modifying impacts of nonnative plant species, habitat destruction and modification by nonnative plant species is and will continue to be a threat to
Several programs and partnerships to address the threat of habitat modification by nonnative plant species and feral pigs have been established and are ongoing within areas that provide habitat for
In summary, based on the best available scientific and commercial information, we consider the threats of destruction, modification, and curtailment of the species habitat and range to be ongoing threats to
Tree snails can be found around the world in tropical and subtropical regions and have been valued as collectibles for centuries. For example, the endemic Hawaiian tree snails within the family Achatinellidae were extensively collected for scientific and recreational purposes by Europeans in the 18th to early 20th centuries (Hadfield 1986, p. 322). During the 1800s, collectors sometimes took more than 4,000 snails in several hours (Hadfield 1986, p. 322). Repeated collections of hundreds to thousands of individuals may have contributed to decline in these species by reduction of reproductive potential (removal of breeding adults) as well as by reduction of total numbers (Hadfield 1986, p. 327). In the Hawaiian genus
In the proposed rule, we erroneously included “overutilization for scientific purposes” in our assessment of threats to
In American Samoa, thousands of partulid tree snail shells (mostly
We are not aware of any threats to
At present, the major existing threat to long-term survival of the native snail fauna in American Samoa is predation by the nonnative rosy wolf snail, the most commonly recommended biological control agent of the giant African snail (
Numerous studies show that the rosy wolf snail feeds on endemic island snails and is a major agent in their declines and extinctions (Hadfield and Mountain 1981, p. 357; Howarth 1983, p. 240, 1985, p. 161, 1991, p. 489; Clarke
Predation by several other nonnative carnivorous snails,
The potential impacts of these two species on the native fauna are unknown; both are much smaller than the rosy wolf snail and
Predation by the nonnative New Guinea or snail-eating flatworm (
The New Guinea flatworm has contributed to the decline of native tree snails due to its ability to ascend into trees and bushes (Sugiura and Yamaura 2009, p. 741). Although mostly ground-dwelling, the New Guinea flatworm has also been observed to climb trees and feed on partulid tree snails (Hopper and Smith 1992, p. 82). Areas with populations of the flatworm usually lack partulid tree snails or have declining numbers of snails (Hopper and Smith 1992, p. 82). Because
Rats are likely responsible for the greatest number of animal extinctions on islands throughout the world, including extinctions of various snail species (Towns
Evidence of predation by rats on
We are unaware of any conservation actions planned or implemented at this time to abate the threats of predation by rats, nonnative snails, or flatworms to
In summary, based on the best available scientific and commercial information, we consider predation by the rosy wolf snail,
No existing Federal laws, treaties, or regulations specify protection of
The Territorial Endangered Species Act provides for appointment of a Commission with the authority to nominate species as either endangered or threatened (ASCA, title 24, chapter 7). Regulations adopted under the Coastal Management Act (ASCA § 24.0501
Under ASCA, title 24, chapter 08 (Noxious Weeds), the Territorial DOA has the authority to ban, confiscate, and destroy species of plants harmful to the agricultural economy. Similarly, under ASCA, title 24, chapter 06 (Quarantine), the director of DOA has the authority to promulgate agriculture quarantine restrictions concerning animals. These laws may provide some protection against the introduction of new nonnative species that may have negative effects on
As described above, the Territorial Coastal Management Act establishes a land use permit (LUP) system for development projects and a Project Notification Review System (PNRS) for multi-agency review and approval of LUP applications (ASAC § 26.0206). The standards and criteria for review of LUP applications include requirements to protect Special Management Areas (SMA), Unique Areas, and “critical habitats” (ASCA § 24.0501
These laws and regulations are designed to ensure that “environmental concerns are given appropriate consideration,” and include provisions and requirements that could address to some degree threats to native forest habitat required by
In summary, existing Territorial laws and regulatory mechanisms have the potential to offer some level of protection for
The Coastal Management Act and its implementing regulations have the potential to address the threat of habitat loss to deforestation more substantively, but in practice do not appear to do so. Based on the best available information, some existing regulatory mechanisms have the potential to offer some protection of
Hurricanes are a common natural disturbance in the tropical Pacific and have occurred in American Samoa with varying frequency and intensity (see Factor E discussion for the Pacific sheath-tailed bat). Hurricanes may adversely impact the habitat of
The negative impact on
Nevertheless, the destruction of native vegetation and forest canopy, and modification of light and moisture conditions both during and in the months and possibly years following hurricanes, can negatively impact the populations of
Species that undergo significant habitat loss and degradation and other threats resulting in decline and range reduction are inherently highly vulnerable to extinction resulting from localized catastrophes such as severe storms or disease outbreaks, climate change effects, and demographic stochasticity (Gilpin and Soulé 1986, pp. 24-34; Pimm
We consider
Our analyses under the Act include consideration of ongoing and projected changes in climate (see Factor E discussion for the Pacific sheath-tailed bat). The magnitude and intensity of the impacts of global climate change and increasing temperatures on western tropical Pacific island ecosystems currently are unknown. In addition, there are no climate change studies that address impacts to the specific habitats of
Although we do not have specific information on the impacts of the effects of climate change to
We are unaware of any conservation actions planned or implemented at this time to abate the threats of hurricanes, low numbers of individuals, and effects of climate change that negatively affect
In our analysis of the five factors, we found that the snail
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to
The threat of habitat destruction and modification from agriculture and development, nonnative plant species, and feral pigs is occurring throughout the range of
Additionally, the low numbers of individuals and populations of
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range. Because we have determined that the snail
Although the biology of the genus
Until 1975,
The threats of nonnative plants, agriculture and development, and feral pigs negatively impact the habitat of
Several programs and partnerships to address the threat of habitat modification by nonnative plant species and feral pigs have been established and are ongoing within areas that provide habitat for
In the proposed rule, we erroneously included “overutilization for scientific purposes” in our assessment of threats to
We are not aware of any threats to
The nonnative rosy wolf snail is widespread on Tutuila and has been shown to contribute to the decline and extinction of native land snails (see Factor C discussion for
Predation by several other nonnative carnivorous snails,
The nonnative New Guinea or snail-eating flatworm has been the cause of decline and extinction of native land snails (see Factor C discussion for
Rats are known to prey upon endemic land snails and can devastate populations (see Factor C discussion for
We are unaware of any conservation actions planned or implemented at this time to abate the threats of predation by rats, nonnative snails, or flatworms to
In summary, based on the best available scientific and commercial information, we consider predation by the rosy wolf snail,
No existing Federal laws, treaties, or regulations specify protection of the habitat of
The Territorial Endangered Species Act provides for appointment of a Commission with the authority to nominate species as either endangered or threatened (ASCA, title 24, chapter 7). Regulations adopted under the Coastal Management Act (ASCA § 24.0501
Under ASCA, title 24, chapter 08 (Noxious Weeds), the Territorial DOA has the authority to ban, confiscate, and destroy species of plants harmful to the agricultural economy. Similarly, under ASCA, title 24, chapter 06 (Quarantine), the director of DOA has the authority to promulgate agriculture quarantine restrictions concerning animals. These laws may provide some protection against the introduction of new nonnative species that may have negative effects on the habitat of
As described above, the Territorial Coastal Management Act establishes a land use permit (LUP) system for development projects and a Project Notification Review System (PNRS) for multi-agency review and approval of LUP applications (ASAC § 26.0206). The standards and criteria for review of LUP applications include requirements to protect Special Management Areas (SMA), Unique Areas, and “critical habitats” (ASCA § 24.0501
These laws and regulations are designed to ensure that “environmental concerns are given appropriate consideration” and include provisions and requirements that could address to some degree threats to native forest habitat required by
In summary, existing Territorial laws and regulatory mechanisms have the potential to offer some level of protection for
Species with low numbers of individuals, restricted distributions, and small, isolated populations are often more susceptible to extinction as a result of reduced levels of genetic variation, inbreeding depression, reproduced reproductive vigor, random demographic fluctuations, and natural catastrophes such as hurricanes (see Factor E discussion for
We consider
We do not have specific information on the impacts of the effects of climate change to
We are unaware of any conservation actions planned or implemented at this time to abate the threats of hurricanes, low numbers of individuals, and the effects of climate change that negatively impact
In our analysis of the five factors, we found that the snail
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that
Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the snail
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing creates public awareness and can stimulate conservation by Federal, Territorial, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and Territories and requires that recovery actions be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-
Recovery planning includes the development of a recovery outline shortly after a species is listed followed by preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan identifies site-specific management actions that set a trigger for review of the five factors that control whether a species remains endangered or may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State or Territorial agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Territories, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
When these species are listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, U.S. Territory of American Samoa would be eligible for Federal funds to implement management actions that promote the protection or recovery of these species. Information on our grant programs that are available to aid species recovery can be found at:
Please let us know if you are interested in participating in recovery efforts for these species. Additionally, we invite you to submit any new information on these species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Section 8(a) of the Act authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered or threatened species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign listed species, and to provide assistance for such programs, in the form of personnel and the training of personnel.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21 for endangered wildlife, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) any such species within the United States or the territorial sea of the United States or upon the high seas; to import into or export from the United States any such species; to deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of commercial activity, any such species; or sell or offer for sale in interstate or foreign commerce any such species. In addition, prohibitions of section 9(a)(1) of the Act make it unlawful to possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species. With regard to endangered wildlife, a permit may be issued for the following purposes: for scientific purposes, to enhance the propagation or survival of the species, or for incidental take in connection with otherwise lawful activities. Requests for copies of the regulations regarding listed species and inquiries about prohibitions and permits may be addressed to U.S. Fish and Wildlife Service, Pacific Region, Ecological Services, Eastside Federal Complex, 911 NE. 11th Avenue, Portland, OR 97232-4181 (telephone 503-231-6131; facsimile 503-231-6243).
It is our policy, as published in the
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Pacific Islands Fish and Wildlife Office (see
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this rule are the staff members of the Pacific Islands Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; 4201-4245 unless otherwise noted.
The additions read as follows:
(h) * * *
Foreign Agricultural Service and Commodity Credit Corporation, USDA.
Final rule with request for comments.
This final rule amends the regulations used to administer the Facility Guarantee Program (FGP). Under the FGP, the Commodity Credit Corporation (CCC) may issue payment guarantees in connection with sales of goods or U.S. services to establish or improve agricultural-related facilities in emerging markets to expand exports of U.S. agricultural commodities or products. This final rule incorporates statutory changes from the Food, Conservation, and Energy Act of 2008 and modifications intended to reduce the burden on participants and improve program efficiency and effectiveness. Certain revisions will ensure the FGP is operated in compliance with the Organisation for Economic Co-operation and Development (OECD) Arrangement on Officially Supported Export Credits. Additionally, this final rule incorporates significant changes previously made to the regulations for the Export Credit Guarantee Program (GSM-102) that are also applicable to the FGP.
This rule is effective September 22, 2016. In order to solicit views based on program experience, the Foreign Agricultural Service (FAS) is providing the public with an additional 180-day comment period. FAS will consider comments received and may issue a revised final rule based on the comments. To facilitate additional comment, FAS has included a list of questions for participants to consider and respond to (see “Questions for Consideration” section below). Comments concerning this final rule must be received by March 21, 2017 to be assured consideration.
Comments may be submitted by any of the following methods:
Amy Slusher, Deputy Director, Credit Programs Division, by phone at (202) 720-6211, or by email at:
The Commodity Credit Corporation's (CCC) Facility Guarantee Program (FGP) is administered by the Foreign Agricultural Service (FAS) of the U.S. Department of Agriculture (USDA) on behalf of CCC, pursuant to program regulations codified at 7 CFR part 1493; through the issuance of program announcements and notices to participants that are consistent with this regulation; and in compliance with the requirements of the Organisation for Economic Co-operation and Development (OECD) Arrangement on Officially Supported Export Credits, where applicable. Under the FGP, CCC provides payment guarantees to facilitate the financing of manufactured goods and U.S. services to improve or establish agriculture-related facilities in emerging markets. By supporting such facilities, the FGP is designed to enhance sales of U.S. agricultural commodities and products to emerging markets where the demand for such commodities and products may be limited due to inadequate storage, processing, handling, or distribution capabilities.
The previous FGP rule became effective on August 8, 1997. The Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246) (2008 Act) modified the program by including a “construction waiver” that allows the Secretary of Agriculture to waive requirements related to the use of U.S. goods in the construction of a proposed facility if the Secretary determines that “(A) goods from the United States are not available; or (B) the use of goods from the United States is not practicable.”
On August 6, 2009, FAS published an advance notice of proposed rulemaking (ANPR) in the
FAS issued a proposed rule soliciting public comment on June 15, 2015 (80 FR 34080). The comments received, as well as FAS's responses, are described below. No changes were made to the rule in response to these comments.
CCC is providing program participants the opportunity to comment on this final rule. In particular, participants are encouraged to utilize the FGP and, based on that experience, provide input to CCC on potential program improvements and additional modifications to the rule. The questions below are designed to facilitate feedback; however, participants may comment on any aspect of the regulation or program operations.
Question 1: Does the requirement for a letter of credit hinder the FGP program's effectiveness? If so, what other types of financing mechanism(s) would be appropriate for this program?
Question 2: Have you submitted a transaction to CCC for FGP coverage (or do you intend to submit a transaction) in which you faced difficulties in obtaining alternative financing? If so, in what ways is the FGP program different—and potentially more useful—for your particular transaction?
Question 3: Describe any risks you have faced—either under an FGP-supported transaction or other past transactions—that prevented completion of the project. How can CCC assist with reducing or eliminating these risks?
Question 4: If you have used or are familiar with other types of facility loan, guarantee or insurance programs, such as programs offered by the U.S. Export-Import Bank, the International Finance Corporation of the World Bank Group, or others, what are the benefits of using the FGP program over these other programs?
Question 5: How do the FGP program terms (tenor, fees, coverage level, etc.) compare to other official government support programs you have used (including both U.S. and non-U.S. programs)?
Question 6: Are the tenor (repayment term) restrictions dictated by the OECD Arrangement indicative of the needs in the market for project financing?
Question 7: Would the FGP program be attractive if CCC offered coverage of less than 100 percent (or 85 percent after deduction of the initial payment)?
Question 8: Is the required minimum initial payment of 15% an appropriate amount to demonstrate genuine interest in moving forward with an FGP program transaction—or a deterrent to participating?
Question 9: Will the 50 percent U.S. content requirement hinder your participation in the FGP—even though you can request and receive a waiver of the requirement from CCC?
Question 10: Are the potential participants in the FGP (sellers, U.S. financial institutions, and foreign financial institutions) the same as under CCC's GSM-102 program? If not, what avenues should CCC use to introduce the FGP to a broader or different set of potential program users?
Question 11: Describe any difficulties you had in obtaining interest for an FGP transaction from one of CCC's approved U.S. or foreign financial institutions.
Question 12: Has the FGP assisted you in finding new overseas buyers, or enhanced your sales with existing buyers? If yes, please explain.
Question 13: How could CCC improve the letter of interest stage of the application process? Is there additional information CCC should collect from the seller during this stage? If you submitted a letter of interest for a transaction, was the feedback you received from CCC beneficial?
Question 14: What suggestions do you have to streamline and simplify the payment guarantee application process?
Question 15: In making the determination of whether a transaction will likely primarily benefit U.S. agricultural commodity exports, CCC relies on its own internal analysis and consultation with relevant external stakeholders. Should CCC request more information from the seller in making this determination?
Question 16: Has your firm been required in the past to conduct an environmental and social risk assessment or impact analysis related to a project? If so, how did those requirements compare to the guidelines and requirements of the OECD and FGP Program?
Question 17: Please describe any difficulties you faced in adhering to the FGP's environmental and social impact requirements—for example, in providing required information for the screening document; providing the environmental and social impact assessment; or monitoring and reporting. What modifications could CCC make to the program to alleviate these difficulties?
Question 18: What suggestions do you have regarding how CCC could improve FGP program guidance—in ways that would make the program easier to understand and/or would attract additional participants?
CCC made a number of changes in the final rule (from the proposed rule), particularly related to environmental and social screening and review of projects. Primarily, the final rule includes a more detailed explanation of the requirements for submitting information on potential environmental and social impacts of a transaction, the timing for submitting this information, and related reporting requirements. Key aspects of the program and associated requirements in the final rule are discussed below. In some instances, the numbering system of this final rule differs from that in the proposed rule. For purposes of this discussion, the numbering of the final rule is used.
Following the effective date of this final rule, FAS will announce on the USDA Web site program allocations for FGP payment guarantees; a list of eligible emerging markets; approved U.S. and foreign financial institutions; and other relevant program information,
Similar to the GSM-102 Export Credit Guarantee Program, the payment mechanism underlying the FGP transaction is a letter of credit issued by a CCC-approved foreign financial institution. The payment guarantee is an agreement by CCC to pay the seller, or the U.S. financial institution that may take assignment of the payment guarantee, specified amounts of principal and interest in case of default by the foreign financial institution that issued the letter of credit in favor of the seller for the sale covered by the payment guarantee.
The United States is a participant in the OECD Arrangement on Officially Supported Export Credits (“the Arrangement”). The Arrangement seeks to foster a level playing field for official export credits and applies “to all official support provided by or on behalf of a government for export of goods and/or services, including financial leases, which have a repayment term of two years or more.” The Arrangement is updated periodically by OECD Participants. The most recent version can be found at
The Arrangement prescribes maximum tenor (repayment terms) based on the destination country of the transaction: OECD Category I (high-income) countries are eligible for a maximum tenor of five years (with the possibility of 8.5 years in certain circumstances); Category II countries (all others) are eligible for a maximum tenor of 10 years. Because the FGP covers transactions in emerging markets, most program destination countries will fall into OECD Category II; however, CCC may prescribe shorter tenors for certain countries and obligors based on risk considerations.
The Arrangement requires a minimum down payment be made by the buyer to the seller prior to the start of the credit. The minimum amount of the required initial payment (as a percentage of the net contract value) will be specified on the USDA Web site. The current requirement under the Arrangement is 15 percent. The initial payment must be made, and documentation of such initial payment provided to CCC, before CCC will approve the seller's final application for a payment guarantee.
The Arrangement limits coverage to a maximum of 85 percent of the net contract value; therefore, CCC may offer coverage of up to 100 percent of the balance of the transaction after the initial payment is deducted. This equates to 100 percent coverage of the sum of the net contract value and approved local costs, less the initial payment and any discounts and allowances. CCC may elect to offer a lower percentage of coverage. Maximum coverage will be specified on the USDA Web site.
The Arrangement prescribes minimum fees to be charged based on country risk, obligor risk, tenor, percentage of cover, and other factors. FGP guarantee fees will be available on the USDA Web site, will be consistent with the rules of the Arrangement, and will also reflect CCC's assessment of repayment risk. CCC will not issue a payment guarantee until the seller remits the full guarantee fee.
All sellers must provide the information and meet the qualification requirements in § 1493.220 before CCC will consider any FGP transactions. To reduce the burden on program participants, CCC eliminated FGP qualification requirements for sellers already qualified to participate in the GSM-102 Program. In accordance with § 1493.220(c), sellers who are qualified exporters under the GSM-102 program are only required to submit additional information specific to the FGP.
All U.S. and foreign financial institutions must provide the information and meet the qualification requirements of §§ 1493.230 and 1493.240, respectively, before participating in FGP transactions. U.S. financial institutions qualified under the GSM-102 program are automatically qualified to participate in the FGP. Due to the longer tenors and corresponding higher risk under the FGP, CCC will determine on a case-by-case basis whether foreign financial institutions already qualified under the GSM-102 Program are eligible for the FGP. There is no separate FGP qualification process for foreign financial institutions. CCC will advise interested foreign financial institutions of their dollar participation limit under the GSM-102 and FGP Programs.
The FACT Act, as amended, allows for the provision of export credit guarantees for “(A) the establishment or improvement of facilities, or (B) the provision of services or United States products goods [sic], in emerging markets by United States persons to improve handling, marketing, processing, storage, or distribution of imported agricultural commodities and products thereof
Rather than require the seller to provide an in-depth analysis and projection of future U.S. agricultural commodity exports, CCC will now conduct this analysis. CCC will seek input from other parts of USDA, commodity organizations, state and regional trade groups, commodity exporters, and other relevant governmental and private sector organizations to assist in collecting data, conducting this analysis, and determining a transaction's impact. CCC will not approve an application for a payment guarantee if CCC determines that the transaction is unlikely to primarily benefit U.S. agricultural commodity exports.
The OECD “Common Approaches for Officially Supported Export Credits and Environmental and Social Due Diligence” provides guidelines for addressing environmental and social impacts related to exports of capital goods and/or services. These guidelines assist OECD members in preventing and mitigating adverse environmental and social impacts of projects receiving official support.
Consistent with the OECD guidelines, CCC will screen all FGP payment
If CCC determines that a transaction will have potential adverse impacts, the seller must submit an environmental and social impact assessment (ESIA), an in-depth report that identifies these risks and proposes measures to offset them. Sellers are encouraged to consider potentially adverse impacts early on in the project, as an ESIA can take several months to complete. The cost of the ESIA can be financed under the payment guarantee if the ESIA meets the definition of a “U.S. Service.” If an ESIA is required, the seller must submit it with the final application for a payment guarantee. CCC will publish certain non-business confidential details of any transactions requiring an ESIA and provide the public with opportunity to comment. Additionally, certain transactions, including all transactions requiring an ESIA, will be subject to regular reporting throughout the life of the payment guarantee in accordance with § 1493.260(f).
CCC may reject an application for a payment guarantee if the transaction entails significant adverse environmental and/or social impacts that cannot be satisfactorily mitigated.
Sellers may request coverage of any of the following under the FGP:
1.
2.
3.
4.
The net contract value of the transaction is the basis for calculating the maximum amount of coverage (guaranteed value) that CCC will approve. The net contract value consists of the value of U.S. goods, cost of U.S. services, and value of non-U.S. goods (excluding local costs) that CCC has agreed to cover. Adding to the net contract value the value of approved local costs, then deducting the amount of the initial payment and any discount and allowances, and multiplying the result by the guaranteed percentage (100 percent, for example), generates the guaranteed value. The “Sample Transaction” below illustrates how to calculate net contract value, guaranteed value, and other required information.
CCC will apply a U.S. content test to all transactions to determine the level of U.S. versus non-U.S. content. Specifically, CCC will calculate the sum of the value of imported components and value of eligible non-U.S. goods (including approved local costs) as a percentage of the total value of goods and cost of services CCC agrees to cover (
If non-U.S. content accounts for 50 percent or more of the sum of the net contract value and approved local costs, the seller may request a coverage waiver. When requesting a coverage waiver, the seller must use one of the justifications found in § 1493.290(f)(2).
In making a determination regarding whether to grant a coverage waiver for non-U.S. goods or the U.S. content test, CCC will seek to validate the information that the seller provided to justify the inclusion of non-U.S. goods and/or imported components in U.S. goods. CCC will reach out to relevant companies, industry groups and government agencies to research the necessity of granting the waiver. Additionally, CCC will consider whether or not the non-U.S. goods and/or imported components in U.S. goods are essential to the completion of the FGP transaction. By allowing the seller multiple bases upon which it may request a coverage waiver, CCC intends to provide maximum flexibility in approving goods, services and projects that will meet the requirement to primarily benefit the export of U.S. agricultural commodities.
There is one optional step (letter of interest) and two required steps (initial and final applications) in the FGP payment guarantee application process.
In accordance with § 1493.260(a), the seller may opt to submit a letter of interest to CCC describing a proposed transaction. The USDA Web site describes the information needed in the letter of interest. CCC will review the letter of interest and provide preliminary feedback on whether the proposed transaction may be eligible for FGP coverage. In doing so, CCC hopes to reduce the burden on participants by ruling out ineligible projects prior to the more in-depth application process. The letter of interest must be accompanied by a non-refundable fee (specified on the USDA Web site) that will be deducted from the final guarantee fee if the letter of interest ultimately results in issuance of a payment guarantee. If the seller opts to submit a letter of interest, it must be accompanied by a preliminary environmental and social screening document.
CCC divided the payment guarantee application process into two steps, as the seller will be unable to provide all required information without receiving
CCC will review the initial application to determine if the proposal meets program requirements and whether to approve any coverage waiver requests. At this time, CCC will also determine if the transaction entails potential negative environmental and/or social impacts, and, if so, will require the seller to submit an environmental and social impact assessment. If CCC approves the initial application, the seller must submit a final application for payment guarantee.
The seller will have at least 30 calendar days to submit the final application (§ 1493.260(d)). This timeframe will be based in part on whether the seller must provide an ESIA with the final application; if so, CCC will allow a longer timeframe. The seller must submit the full guarantee fee (less any letter of interest and initial application fees) with the final application. Upon CCC's review and approval of the final application, review and approval of the ESIA (if required), and receipt of the full guarantee fee, CCC will issue a payment guarantee in favor of the seller.
The seller may choose to assign the payment guarantee to an approved U.S. financial institution in accordance with § 1493.310 and be paid as performance occurs. A list of approved U.S. financial institutions is available on the USDA Web site.
The seller is required to submit to CCC an evidence of performance report meeting the requirements of § 1493.320 for all contractual events occurring under the payment guarantee. The seller must submit the evidence of performance within 30 calendar days of each date of performance unless CCC grants an extension to this timeframe.
If the foreign financial institution fails to make payment under the letter of credit, the holder of the payment guarantee (either the seller or the U.S. financial institution) must submit a notice of default to CCC no later than 5 business days after the date the payment was due from the foreign financial institution. A claim for default must be submitted to CCC no later than 180 calendar days from the date of the defaulted payment.
Assume a seller submits an initial application for a payment guarantee. The total value of the firm sales contract with the buyer is $2,200,000. The elements of the firm sales contract are as follows:
CCC applies the U.S. content test to determine the percentage of U.S. content:
CCC's coverage is calculated as follows. Note that local costs in this example are approximately 5 percent of the net contract value (less than the maximum allowable 30 percent) and are approved by CCC.
This final rule is issued in conformance with Executive Order 12866. It has been determined to be not significant for the purposes of Executive Order 12866 and was not reviewed by OMB. A cost-benefit assessment of this rule was not completed.
This final rule has been reviewed in accordance with Executive Order 12988. This final rule would not preempt State or local laws, regulations, or policies unless they present an irreconcilable conflict with this final rule. Before any judicial action may be brought concerning the provisions of this final rule, the appeal provisions of 7 CFR part 1493.200 would need to be exhausted. This rulemaking would not be retroactive.
This program is not subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983).
This final rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this final rule do not have any substantial direct effect on States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government, nor does this final rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
The United States has a unique relationship with Indian Tribes as provided in the Constitution of the United States, treaties, and Federal statutes. On November 5, 2009, President Obama signed a Memorandum emphasizing his commitment to “regular and meaningful consultation and collaboration with tribal officials in policy decisions that have tribal implications including, as an initial step, through complete and consistent implementation of Executive Order 13175.” This rule has been reviewed for compliance with E.O. 13175. The policies contained in this rule do not
The Regulatory Flexibility Act does not apply to this rule because CCC is not required by 5 U.S.C. 553 or any other law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.
CCC has determined that this final rule does not constitute a major State or Federal action that would significantly affect the human or natural environment. Consistent with the National Environmental Policy Act (NEPA), 40 CFR 1502.4, “Major Federal Actions Requiring the Preparation of Environmental Impact Statements” and the regulations of the Council on Environmental Quality, 40 CFR parts 1500-1508, no environmental assessment or environmental impact statement will be prepared.
This final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA). Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
The information collection and record keeping requirements contained in this regulation have been submitted to OMB for approval in accordance with the Paperwork Reduction Act of 1995 under OMB Control Number 0551-0032.
CCC is committed to complying with the E-Government Act to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services and for other purposes. The forms, regulations, and other information collection activities required to be utilized by a person subject to this rule are available at:
Agricultural commodities, Exports.
For the reasons stated in the preamble, CCC amends 7 CFR part 1493 as follows:
7 U.S.C. 5602, 5622, 5622 note, 5661-5664, 5676; 15 U.S.C. 714b(d), 714c(f).
(a)
(b)
Terms set forth in this part, on the USDA Web site (including in program announcements and notices to participants), and in any CCC-originated documents pertaining to the FGP will have the following meanings:
(1) The transaction meets the U.S. content test in § 1493.290(e); or
(2) A coverage waiver of the U.S. content test has been requested by the seller and approved by CCC.
(1) The amount calculated using the interest rate agreed by the holder of the payment guarantee and the foreign financial institution; or
(2) The amount calculated using the specified percentage of the Treasury bill investment rate set forth on the face of the payment guarantee.
(1) Is taking steps toward a market-oriented economy through the food, agriculture, or rural business sectors of the economy of the country; and
(2) has the potential to provide a viable and significant market for U.S. agricultural commodities or products.
(1) Date of sale;
(2) A complete description of all goods associated with the transaction. For goods to be covered by the payment guarantee, include the brand name and model number, country where the good was manufactured and country from which the good will be exported (if applicable), quantity, value, and Incoterms (if applicable);
(3) A complete description of all services associated with the transaction. For services to be covered by the payment guarantee, include the supplier and cost;
(4) The date of performance of each contractual event; and
(5) Evidence of agreement between buyer and seller.
(1) Organized and licensed under the laws of a jurisdiction outside the United States;
(2) Not domiciled in the United States; and
(3) Subject to the banking or other financial regulatory authority of a foreign jurisdiction (except for multilateral and sovereign institutions).
(1) (i) An agricultural commodity or product entirely produced in the United States; or
(ii) A product of an agricultural commodity—
(A) 90 percent or more of the agricultural components of which by weight, excluding packaging and added
(B) That the Secretary determines to be a high value agricultural product.
(2) For purposes of this definition, fish entirely produced in the United States include fish harvested by a documented fishing vessel as defined in title 46, United States Code, in waters that are not waters (including the territorial sea) of a foreign country.
(1) Organized and licensed under the laws of a jurisdiction within the United States;
(2) Domiciled in the United States; and
(3) Subject to the banking or other financial regulatory authority jurisdiction within the United States.
(1) An individual who is a citizen or legal resident of the United States; or
(2) An entity constituted or organized in the United States, including any corporation, trust partnership, sole proprietorship, joint venture, or other association with business activities in the United States.
(1) The price stipulated in the firm sales contract or, if such price is not available;
(2) The declared customs value or, if the customs value is not available; then
(3) The fair market wholesale value in the United States.
(1) The price stipulated in the firm sales contract or, if such price is not available;
(2) The declared customs value or, if the customs value is not available; then
(3) The fair market wholesale value in the United States.
(a)
(1) For the applicant:
(i) The name and full U.S. address (including the full 9-digit zip code) of the applicant's office, along with an indication of whether the address is a business or private residence. A post office box is not an acceptable address. If the applicant has multiple offices, the address included in the information should be that which is pertinent to the FGP sales contemplated by the applicant;
(ii) Dun and Bradstreet (DUNS) number;
(iii) Employer Identification Number (EIN—also known as a Federal Tax Identification Number);
(iv) Telephone and fax numbers;
(v) Email address (if applicable);
(vi) Business Web site (if applicable);
(vii) Contact name;
(viii) Statement indicating whether the applicant is a U.S. domestic entity or a foreign entity domiciled in the United States; and
(ix) The form of business entity of the applicant, (
(2) For the applicant's headquarters office:
(i) The name and full address of the applicant's headquarters office (a post office box is not an acceptable address); and
(ii) Telephone and fax numbers.
(3) For the applicant's agent for the service of process:
(i) The name and full U.S. address of the applicant's agent's office, along with an indication of whether the address is a business or private residence;
(ii) Telephone and fax numbers;
(iii) Email address (if applicable); and
(iv) Contact name.
(4) A description of the applicant's business. Applicants must provide the following information:
(i) Nature of the applicant's business (
(ii) Explanation of the applicant's experience/history selling the goods or services to be sold under the FGP, including number of years involved in selling, types of goods or services sold, and destination of sales for the preceding three years;
(iii) Whether or not the applicant is a “small or medium enterprise” (SME) as defined on the USDA Web site.
(5) A listing of any related companies (
(6) A statement describing the applicant's participation, if any, during the past three years in U.S. Government programs, contracts or agreements; and
(7) A statement that: “All certifications set forth in 7 CFR 1493.250(a) are hereby made in this application” which, when included in the application, will constitute a certification that the applicant is in compliance with all of the requirements set forth in § 1493.250(a). The applicant will be required to provide further explanation or documentation if not in compliance with these requirements or if the application does not include this statement.
(b)
(c)
(d)
(a)
(1) Legal name and address of the applicant;
(2) Dun and Bradstreet (DUNS) number;
(3) Employer Identification Number (EIN—also known as a Federal Tax Identification Number);
(4) Year-end audited financial statements for the applicant's most recent fiscal year;
(5) Breakdown of the applicant's ownership as follows:
(i) Ten largest individual shareholders and ownership percentages;
(ii) Percentage of government ownership, if any; and
(iii) Identity of the legal entity or person with ultimate control or decision making authority, if other than the majority shareholder.
(6) Organizational structure (independent, or a subsidiary, affiliate, or branch of another financial institution);
(7) Documentation from the applicable United States Federal or State agency demonstrating that the applicant is either licensed or chartered to do business in the United States;
(8) Name of the agency that regulates the applicant and the name and telephone number of the primary contact for such regulator; and
(9) A statement that: “All certifications set forth in 7 CFR 1493.250 are hereby made in this application” which, when included in the application, will constitute a certification that the applicant is in compliance with all of the requirements set forth in § 1493.250. The applicant will be required to provide further explanation or documentation if not in compliance with these requirements or if the application does not include this statement.
(b)
(c)
(d)
(a)
(1) Legal name and address of the applicant;
(2) Year-end, audited financial statements in accordance with the accounting standards established by the applicant's regulators, in English, for the applicant's three most recent fiscal years. If the applicant is not subject to a banking or other financial regulatory authority, year-end, audited financial statements in accordance with prevailing accounting standards, in English, for the applicant's three most recent fiscal years;
(3) Breakdown of applicant's ownership as follows:
(i) Ten largest individual shareholders and ownership percentages;
(ii) Percentage of government ownership, if any; and
(iii) Identity of the legal entity or person with ultimate control or decision making authority, if other than the majority shareholder.
(4) Organizational structure (independent, or a subsidiary, affiliate, or branch of another legal entity);
(5) Name of foreign government agency that regulates the applicant; and
(6) A statement that: “All certifications set forth in 7 CFR 1493.250 are hereby made in this application” which, when included in the application, will constitute a certification that the applicant is in compliance with all of the requirements set forth in § 1493.250. The applicant will be required to provide further explanation or documentation if not in compliance with these requirements or if the application does not include this statement.
(b)
(c)
(d)
(e)
(1) May be deemed ineligible to participate in the FGP if such applicant cannot provide all of the information and certifications required in § 1493.240(a); and
(2) Will be deemed ineligible to participate in the FGP if, based upon information submitted by the applicant or other publicly available sources, CCC determines that the applicant cannot adequately service the debt associated with the payment guarantees issued by CCC.
(a) When making the statement required by §§ 1493.220(a)(7), 1493.230(a)(9), or 1493.240(a)(6), each seller, U.S. financial institution and foreign financial institution applicant for program participation is certifying that, to the best of its knowledge and belief:
(1) The applicant and any of its principals (as defined in 2 CFR 180.995) or affiliates (as defined in 2 CFR 180.905) are not presently debarred, suspended, proposed for debarment, declared ineligible, or excluded from covered transactions by any U.S. Federal department or agency;
(2) The applicant and any of its principals (as defined in 2 CFR 180.995) or affiliates (as defined in 2 CFR 180.905) have not within a three-year period preceding this application been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;
(3) The applicant and any of its principals (as defined in 2 CFR 180.995) or affiliates (as defined in 2 CFR 180.905) are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)(2) of this section;
(4) The applicant and any of its principals (as defined in 2 CFR 180.995) or affiliates (as defined in 2 CFR 180.905) have not within a three-year period preceding this application had one or more public transactions (Federal, State or local) terminated for cause or default;
(5) The applicant does not have any outstanding nontax debt to the United States that is in delinquent status as provided in 31 CFR 285.13;
(6) The applicant is not controlled by a person owing an outstanding nontax debt to the United States that is in delinquent status as provided in 31 CFR 285.13 (
(7) The applicant does not control a person owing an outstanding nontax debt to the United States that is in delinquent status as provided in 31 CFR 285.13 (
(b)
(1) The applicant and its principals are in compliance with all requirements, restrictions and guidelines as established by the applicant's regulators; and
(2) All U.S. operations of the applicant and its U.S. principals are in compliance with U.S. anti-money laundering and terrorist financing statutes including, but not limited to, the USA Patriot Act of 2001 and the Foreign Corrupt Practices Act of 1977.
(a)
(b)
(1) Destination country.
(2) The name and address of the buyer. If the buyer is not physically located in the destination country, it must have a buyer's representative in the destination country taking receipt of the goods and services covered by the payment guarantee. If applicable, provide the name and address of the buyer's representative.
(3) The name and address of the party on whose request the letter of credit is issued, if other than the buyer.
(4) The name and address of the end-user of the goods or services, if other than the buyer.
(5) The seller's sales number pertinent to the application and a copy of the firm sales contract.
(6) A description (including location,
(7) List of all agricultural commodities or products (inputs) to be handled, marketed, processed, stored, or distributed by the proposed transaction after completion, and an explanation of why and how the facility or goods and/or services will specifically benefit exporters of U.S. agricultural commodities.
(8) Total value of the firm sales contract.
(9) A full description of each good to be covered by the payment guarantee. The goods specified in the seller's application for the payment guarantee must correspond with the description of the goods specified in the firm sales contract and the foreign financial institution letter of credit. The description must include each of the following:
(i) Brand name and model number;
(ii) Applicable 10-digit Harmonized System classification code;
(iii) Description of the good;
(iv) Country where the good was manufactured and from which the good will be exported;
(v) For U.S. goods, the value of imported components used in the U.S. good's manufacture. If requesting guarantee coverage of only the U.S. components in U.S. goods, provide the value of U.S. components;
(vi) For goods that are local costs, the name of the local supplier;
(vii) Quantity;
(viii) Value of the good; and
(ix) Incoterms (if the sale of the goods is based on Incoterms delivery).
(10) A full description of each U.S. service to be covered by the payment guarantee. The U.S. services specified in the seller's application for the payment guarantee must correspond with the description of the U.S. services specified in the firm sales contract and the foreign financial institution letter of credit. The description must include each of the following:
(i) Description of the U.S. service;
(ii) Supplier of the U.S. service;
(iii) Cost of the U.S. service; and
(iv) NAICS classification number.
(11) A description and date of performance (or timeframe of performance if the exact date is unknown) of each contractual event, as specified in the firm sales contract.
(12) Indication of whether a coverage waiver is requested in accordance with § 1493.290(f). If a coverage waiver is requested, the applicant must indicate the nature of the waiver requested per § 1493.290(f)(1) and provide the justification and explanation required by § 1493.290(f)(2).
(13) Name and location of the foreign financial institution issuing the letter of credit and, upon request by CCC, written evidence that the foreign financial institution has agreed to issue the letter of credit.
(14) The term length of the credit being extended and the intervals between principal payments for each contractual event under the payment guarantee.
(15) If applicable, a description of any arrangements or understandings with other U.S. or foreign government agencies, or with financial institutions or entities, private or public, providing guarantees or financing to the seller or other competing sellers in connection with this sale, whether or not the goods or services are of U.S. origin or would otherwise qualify for a payment guarantee under this subpart. Copies of any documents relating to such arrangements must be provided.
(16) A statement of how this transaction may encourage privatization of the agricultural sector, or benefit private farms or cooperatives, in the destination country. Include in the statement the share of any private sector ownership in the transaction.
(17) An estimate of how many U.S. persons will be or have been hired because of the firm sales contract and/or how many U.S. persons are required to fulfill the firm sales contract.
(18) FGP tracking number assigned to previously submitted letter of interest, if applicable.
(c)
(i) CCC will only consider an initial application in connection with a transaction that CCC determines will benefit primarily exports of U.S. agricultural commodities.
(ii) If, based upon a price review the unit sales price of any good and/or service(s) does not fall within the prevailing commercial market level ranges, as determined by CCC, the initial application will not be approved as submitted.
(iii) CCC will review the preliminary environmental and social screening document submitted by the seller and, if necessary, request additional information from the seller to determine whether the transaction could have potentially significant adverse environmental and/or social impacts. If CCC determines that a transaction may have such significant adverse impacts, the seller must submit an Environmental and Social Impact Assessment (ESIA) with the final application for the payment guarantee. Alternatively, CCC may reject an initial application for payment guarantee based on the screening document and any additional information provided by the seller.
(2) Once CCC indicates its approval of the initial application to the seller, the seller must submit a final application as specified in paragraph (d) of this section before CCC will make a final determination of whether to issue a payment guarantee.
(d)
(1) FGP tracking number assigned by CCC.
(2) Destination country.
(3) The name and address of the buyer.
(4) A description of each good and U.S. service, along with the value of the Good and Cost of the service, for which guarantee coverage is requested, based on CCC's feedback on the seller's initial application. If the seller is seeking guarantee coverage on only the U.S. components used in the assembly of U.S. goods, provide the value of the U.S. Components.
(5) Net contract value.
(6) Amount of the initial payment and evidence that the initial payment has been paid by the buyer to the seller.
(7) Description and value of any discounts and allowances.
(8) Value of approved local costs.
(9) Total FGP transaction value.
(10) Guaranteed value.
(11) Guarantee fee.
(12) The seller's statement, “All certifications set forth in § 1493.270 are hereby being made by the seller in this application” which, when included in the application by the seller, will constitute a certification that it is in compliance with all the requirements set forth in § 1493.270 with respect to both the initial and final applications.
(e)
(f)
(g)
By providing the statement in § 1493.260(d)(12), the seller is certifying that the information provided in the initial and final applications is true and correct and, further, that all requirements set forth in this section have been met. The seller will be required to provide further explanation or documentation with regard to final applications that do not include this statement. If the seller makes false certifications with respect to a payment guarantee, CCC will have the right, in addition to any other rights provided under this subpart or otherwise as a matter of law, to revoke guarantee coverage for any goods not yet exported and services not yet performed and/or to commence legal action and/or administrative proceedings against the seller. The seller, in submitting an application for a payment guarantee and providing the statement set forth in § 1493.260(d)(12), certifies that:
(a) There have not been any corrupt payments or extra sales services or other items extraneous to the transaction provided, financed, or guaranteed in connection with the transaction, and the transaction complies with applicable United States law, including the Foreign Corrupt Practices Act of 1977 and other anti-bribery measures;
(b) At the time of submission of the final application for payment guarantee, the buyer does not appear as an excluded party on the SAM list;
(c) The seller is fully in compliance with the requirements of § 1493.320(b) for all existing payment guarantees issued to the seller or has requested and been granted an extension per § 1493.320(b)(3); and
(d) The information provided pursuant to § 1493.220 has not changed and the seller still meets all of the qualification requirements of § 1493.220.
(a)
(i) If the obligation to pay by the foreign financial institution is conditioned on shipment documentation, the letter of credit must stipulate presentation of at least one original clean on board bill of lading as a required document, unless:
(A) The seller, or a related company previously reported to CCC by the seller pursuant to 1493.220(a)(5), is named as the shipper on the clean, on-board bill of lading. If the seller or a related company is named the shipper on the bill of lading, the letter of credit may stipulate a copy or photocopy of an original, clean, on-board bill of lading; or
(B) The letter of credit stipulates presentation of electronic documents per paragraph (a)(1)(ii) of this section.
(ii) If the letter of credit will allow for presentation of electronic documents, the letter of credit must so stipulate.
(iii) If the obligation to pay by the foreign financial institution is conditioned on a contractual event requiring other than shipment documentation, the contractual event must be clearly stipulated in either the letter of credit or the terms and conditions document.
(2) The use of a terms and conditions document is optional. The terms and conditions document, if any, must be specifically identified and referred to in the foreign financial institution letter of credit.
(3) The special requirements in paragraph (b) of this section must be documented in one of the two following ways:
(i) The special requirements may be set forth in the foreign financial institution letter of credit as a special instruction from the foreign financial institution; or
(ii) The special requirements may be set forth in a separate terms and conditions document.
(b)
(1) The terms of the repayment obligation, including a specific promise by the foreign financial institution issuing the letter of credit to pay the repayment obligation;
(2) The following language: “In the event that the Commodity Credit Corporation (“CCC”) is subrogated to the position of the obligee hereunder, this instrument shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of laws principles. In such case, any legal action or proceeding arising under this instrument will be brought exclusively in the U.S. District Court for the Southern District of New York or the U.S. District Court for the District of Columbia, as determined by CCC, and such parties hereby irrevocably consent to the personal jurisdiction and venue therein.”;
(3) A provision permitting the holder of the payment guarantee to declare all or any part of the repayment obligation, including accrued interest, immediately due and payable, in the event a payment default occurs under the letter of credit
(4) Post default interest terms.
(a)
(b)
(c)
(d)
(e)
(i) The value of eligible non-U.S. goods; and
(ii) The value of imported components.
(2) Imported raw materials and basic manufactured items (such as iron, steel, nuts, bolts, etc.) which are processed, assembled or manufactured in the United States are automatically included in CCC's coverage and are not counted as imported components for the purpose of determining U.S. content.
(f)
(i) To allow for guarantee coverage of non-U.S. goods; and/or
(ii) The U.S. content test, allowing for guarantee coverage of non-U.S. goods and imported components in U.S. goods in excess of the value permitted under the U.S. content test.
(2) To request a coverage waiver on one of the bases specified in paragraph (f)(1) of this section, the seller must submit with the initial application for a payment guarantee a justification of why the non-U.S. goods and/or imported components in U.S. goods are essential to the completion of the FGP transaction. This justification must be based on one of the following:
(i) The goods and/or components are no longer manufactured in or provided by the United States;
(ii) The use of U.S. goods and/or components is not cost effective; or
(iii) U.S. goods and/or components are not compatible with the existing infrastructure in the destination country.
(3) In determining whether to grant a coverage waiver, CCC will consider the following factors:
(i) Whether information obtained by CCC from industry sources, government agencies, or any other sources supports the justification provided by the seller;
(ii) Whether the non-U.S. goods (and/or imported components in U.S. goods) are essential to the completion of the transaction; and
(iii) Any other information CCC determines is relevant.
(g)
(1) The sale includes corrupt payments or extra sales or services or other items extraneous to the transactions provided, financed, or guaranteed in connection with the transaction;
(2) The sale does not comply with applicable U.S. law, including the Foreign Corrupt Practices Act of 1977 and other anti-bribery measures;
(3) The buyer is excluded or disqualified from participation in U.S. government programs;
(4) The goods, services, and/or facility being financed will not primarily benefit U.S. agricultural commodity exports;
(5) The sale is not an eligible export sale.
(h)
(1) Contractual events with a date of performance prior to the date of receipt by CCC of the seller's written initial application for a payment guarantee;
(2) Contractual events with a date of performance later than the final date of performance shown on the payment guarantee or any amendments thereof;
(3) Contractual events where the date of issuance of a foreign financial institution letter of credit is later than the date of performance; or
(4) Contractual events that have been guaranteed by CCC under another payment guarantee. If CCC determines that the contractual event has been guaranteed under multiple payment guarantees (or coverage has been requested under multiple payment guarantees), CCC will determine which payment guarantee (or application for payment guarantee), if any, corresponds to an eligible export sale.
(i)
(j)
(k)
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(1) Made to one party acting for two or more parties; or
(2) Subject to further assignment.
(b)
(c)
(i) [Name of Assignee] has verified that the foreign financial institution, at the time of submission of the notice of assignment, does not appear as an excluded party on the SAM list; and
(ii) To the best of my knowledge and belief, the information provided pursuant to § 1493.230 has not changed and [name of Assignee] still meets all of the qualification requirements of § 1493.230.”
(2) If the assignee makes a false certification with respect to a payment guarantee, CCC may, in its sole discretion, in addition to any other action available as a matter of law, rescind and cancel the payment guarantee, reject the assignment of the payment guarantee, and/or commence legal action and/or administrative proceedings against the assignee.
(d)
(e)
(1) At the time of assignment of a payment guarantee, is not in compliance with all requirements of § 1493.230(a); or
(2) Is the branch, agency, or subsidiary of the foreign financial institution issuing the letter of credit; or
(3) Is owned or controlled by an entity that owns or controls the foreign financial institution issuing the letter of credit; or
(4) Is the U.S. parent of the foreign financial institution issuing the foreign financial institution letter of credit; or
(5) Is owned or controlled by the government of a foreign country and the payment guarantee has been issued in connection with sales of goods or services to buyers located in such foreign country.
(f)
(i) Any repurchase under a repurchase agreement by the holder of the payment guarantee must be for the entirety of outstanding balance under the associated repayment obligation;
(ii) In the event of default with respect to the repayment obligation subject to a repurchase agreement, the holder of the payment guarantee must immediately effect such repurchase; and
(iii) The holder of the payment guarantee must file all documentation required by §§ 1493.350 and 1493.360 in case of a default by the foreign financial institution under the payment guarantee.
(2) The holder of the payment guarantee shall, within five business days of execution of a transaction under the repurchase agreement, notify CCC of the transaction in writing in the manner specified on the USDA Web site. Such notification must include the following information:
(i) Name and address of the other party to the repurchase agreement;
(ii) A statement indicating whether the transaction executed under the repurchase agreement is for a fixed term or if it is terminable upon demand by either party. If fixed, provide the purchase date and the agreed upon date for repurchase. If terminable on demand, provide the purchase date only; and
(iii) The following written certification: “[Name of holder of the payment guarantee] has entered into a repurchase agreement that meets the provisions of 7 CFR 1493.310(f)(1) and, prior to entering into this agreement, verified that [name of other party to the repurchase agreement] does not appear as an excluded party on the SAM list.”
(3) Failure of the holder of the payment guarantee to comply with any of the provisions of § 1493.310(f) may result in CCC annulling coverage on the foreign financial institution letter of credit and Terms and Condition Document, if applicable, covered by the payment guarantee.
(a)
(1) Payment guarantee number;
(2) Evidence of performance report number (
(3) Date of performance;
(4) Seller's firm sales contract number;
(5) Detailed description of the contractual event. For goods, include the applicable 10-digit Harmonized System classification code and the quantity;
(6) Net contract value of the contractual event covered by the payment guarantee;
(7) Amount of initial payment corresponding to the contractual event;
(8) Description and value of discounts and allowances, if any;
(9) Value of approved local costs corresponding to the contractual event, if any;
(10) Total FGP transaction value;
(11) Guaranteed value of contractual event;
(12) The seller's statement, “All certifications set forth in § 1493.330 are hereby made by the seller in this evidence of performance” which, when included in the evidence of performance by the seller, will constitute a certification that it is in compliance with all the requirements set forth in § 1493.330; and
(13) In addition to all of the above information, the final evidence of performance report for the payment guarantee must include the following:
(i) The statement “All contractual events under the payment guarantee have been completed.”
(ii) A statement summarizing the total value of all contractual events covered under the payment guarantee (
(b)
(2) If at any time the seller determines that no contractual events are to occur under a payment guarantee, the seller is required to notify CCC in writing no later than the final date of performance specified on the payment guarantee by furnishing the payment guarantee number and stating “No contractual events will occur under the payment guarantee.”
(3) Requests for an extension of the time limit for submitting an evidence of performance report must be submitted in writing by the seller to the Director and must include an explanation of why the extension is needed. An extension of the time limit may be granted if such extension is requested prior to the expiration of the time limit for filing and is determined by the Director to be in the best interests of CCC.
(c)
By providing the statement contained in § 1493.320(a)(12), the seller is certifying that the information provided in the evidence of performance report is true and correct and, further, that all requirements set forth in this section have been met. The seller will be required to provide further explanation or documentation with regard to reports that do not include this statement. If the seller makes false certifications with respect to a payment guarantee, CCC will have the right, in addition to any other rights provided under this subpart or otherwise as a matter of law, to annul guarantee coverage for any contractual events that have not yet occurred and/or to commence legal action and/or administrative proceedings against the seller. The seller, in submitting the evidence of performance and providing the statement set forth in § 1493.320(a)(12), certifies that:
(a) The specifications and/or quantity of the contractual event conform with the information contained in the seller's application for payment guarantee and firm sales contract, or if different, CCC has approved such changes;
(b) A foreign financial institution letter of credit has been opened in favor of the seller by the foreign financial institution shown on the payment guarantee to cover the dollar amount of the contractual event covered by the payment guarantee, less the initial payment and less discounts and allowances;
(c) There have not been any corrupt payments or extra sales services or other items extraneous to the transaction provided, financed, or guaranteed in connection with the transaction, and that the transaction complies with applicable United States law, including the Foreign Corrupt Practices Act of 1977 and other anti-bribery measures;
(d) If the seller has not assigned the payment guarantee to a U.S. financial institution, the seller has verified that the foreign financial institution, at the time of submission of the evidence of performance report, does not appear as an excluded party on the SAM list; and
(e) The information provided pursuant to §§ 1493.220 and 1493.260 has not changed (except as agreed to and amended by CCC) and the seller still meets all of the qualification requirements of § 1493.220.
(a)
(b)
(i) That the good(s) entered the destination country;
(ii) The identification of the export carrier;
(iii) The quantity of the good(s);
(iv) A description of the good(s); and
(v) The date(s) and place(s) of unloading of the good(s) in the destination country.
(2) Where shipping documents (
(a)
(1) Payment guarantee number;
(2) Name of the destination country as shown on the payment guarantee;
(3) Name of the defaulting foreign financial institution;
(4) Payment due date;
(5) Total amount of the defaulted payment due, indicating separately the amounts for principal and ordinary interest, and including a copy of the repayment schedule with due dates, principal amounts and ordinary interest rates for each installment;
(6) Date of foreign financial institution's refusal to pay, if applicable;
(7) Reason for foreign financial institution's refusal to pay, if known, and copies of any correspondence with the foreign financial institution regarding the default.
(b)
(c)
(1) In the event that a foreign financial institution defaults under a repayment obligation under this subpart or under 7 CFR 1493, subpart B, CCC may declare that such foreign financial institution is no longer eligible to provide additional Letters of Credit under the FGP. If CCC determines that such defaulting foreign financial institution is no longer eligible for the FGP, CCC shall provide written notice of such ineligibility to all sellers and assignees, if any, having payment guarantees covering transactions with respect to which the defaulting foreign financial institution is expected to issue a letter of credit. Receipt of written notice from CCC that a defaulting foreign financial institution is no longer eligible to provide additional Letters of Credit under the FGP shall constitute withdrawal of coverage of that foreign financial institution under all payment guarantees with respect to any letter of credit issued on or after the date of receipt of such written notice. CCC will not withdraw coverage of the defaulting foreign financial institution under any payment guarantee with respect to any letter of credit issued before the date of receipt of such written notice.
(2) If CCC withdraws coverage of the defaulting foreign financial institution, CCC will permit the seller (with concurrence of the assignee, if any) to utilize another approved foreign financial institution, and will consider other requested amendments to the payment guarantee, for the balance of the transaction covered by the payment guarantee. If no alternate foreign financial institution is identified to issue the letter of credit within 30 calendar days, CCC will cancel the payment guarantee and refund the seller's guarantee fees corresponding to any unutilized portion of the payment guarantee.
(a)
(1) An original cover letter signed by the holder of the payment guarantee and containing the following information:
(i) Payment guarantee number;
(ii) A description of:
(A) Any payments from or on behalf of the defaulting party or otherwise related to the defaulted payment that were received by the seller or the assignee prior to submission of the claim; and
(B) Any security, insurance, or collateral arrangements, whether or not any payment has been realized from such security, insurance, or collateral arrangement as of the time of claim, from or on behalf of the defaulting party or otherwise related to the defaulted payment.
(iii) The following certifications:
(A) A certification that the defaulted payment has not been received (or, alternatively, specifying the portion of the scheduled payment that has not been received), listing separately scheduled principal and ordinary interest;
(B) A certification of the amount of the defaulted payment, indicating separately the amounts for defaulted principal and ordinary interest;
(C) A certification that all documents submitted under paragraph (a)(3) of this section are true and correct copies; and
(D) A certification that all documents conforming with the requirements for payment under the foreign financial institution letter of credit have been submitted to the negotiating bank or directly to the foreign financial institution under such letter of credit.
(2) An original instrument, in form and substance satisfactory to CCC, subrogating to CCC the respective rights of the holder of the payment guarantee to the amount of payment in default under the applicable sale. The instrument must reference the applicable foreign financial institution letter of credit and, if applicable, the terms and conditions document; and
(3) A copy of each of the following documents:
(i) The repayment schedule with due dates, principal amounts and ordinary interest rates for each installment (if the ordinary interest rates for future payments are unknown at the time of the claim for default is submitted, provide estimates of such rates);
(ii) (A) The foreign financial institution letter of credit securing the sale; and
(B) If applicable, the terms and conditions document;
(iii) For goods, depending upon the method of shipment, the ocean carrier or intermodal bill(s) of lading signed by the shipping company with the onboard ocean carrier date for each shipment, the airway bill, or, if shipped by rail or truck, the bill of lading and the entry certificate or similar document signed by an official of the destination country. If the transaction utilizes electronic bill(s) of lading (e-BL), a print-out of the e-BL from electronic system with an electronic signature is acceptable;
(iv) The seller's invoice. For shipment of goods, the invoice must show the applicable Incoterms;
(v) The evidence of performance report(s) previously submitted by the seller to CCC in conformity with the requirements of § 1493.320(a); and
(vi) If the defaulted payment was part of a transaction executed under a repurchase agreement, written evidence that the repurchase occurred as required under § 1493.310(f)(1)(ii).
(b)
(c)
(d)
(a)
(b)
(1) The guaranteed value as stated in the payment guarantee, plus Eligible interest, less any payments received or funds realized from insurance, security or collateral arrangements prior to claim by the seller or the assignee from or on behalf of the defaulting party or otherwise related to the obligation in default (other than payments between CCC, the seller or the assignee); or
(2) The guaranteed percentage (as indicated in the payment guarantee) of the value of the contractual event indicated in the evidence of performance, plus eligible interest, less any payments received or funds realized from insurance, security or collateral arrangements prior to claim by the seller or the assignee from or on behalf of the defaulting party or otherwise related to the obligation in default (other than payments between CCC, the seller or the assignee).
(c)
(d)
(e)
(a)
(b)
(2) If CCC recovers monies that should be applied to a payment guarantee for which a claim has been paid by CCC, CCC will pay the holder of the payment guarantee its pro rata share if any, provided that the required information necessary for determining pro rata distribution has been furnished. If a required payment is not made by CCC within 15 business days from the date of recovery or 15 business days from receiving the required information for determining pro rata distribution, whichever is later, CCC will pay interest calculated at a rate equal to the latest average investment rate of the most recent Treasury 91-day bill auction, as announced by the Department of Treasury, in effect on the date of recovery, and interest will accrue from such date to the date of payment by CCC. The interest will apply only to the portion of the recovery payable to the holder of the payment guarantee.
(c)
(d)
(1) The seller will be liable to CCC when and if it is determined by CCC that the seller has engaged in fraud, or has been or is in material breach of any contractual obligation, certification or warranty made by the seller for the purpose of obtaining the payment guarantee or for fulfilling obligations under the FGP; and
(2) The assignee will be liable to CCC when and if it is determined by CCC that the assignee has engaged in fraud or otherwise violated program requirements.
(e)
(a)
(b)
(c)
(d)
(a)
(2) The seller or the assignee may seek reconsideration of a determination made by the Director by submitting a letter requesting reconsideration to the Director within 30 calendar days of the date of the determination. For the purposes of this section, the date of a determination will be the date of the letter or other means of notification to the seller or the assignee of the determination. The seller or the assignee may include with the letter requesting reconsideration any additional information that it wishes the Director to consider in reviewing its request. The Director will respond to the request for reconsideration within 30 calendar days of the date on which the request or the final documentary evidence submitted by the seller or the assignee is received by the Director, whichever is later, unless the Director extends the time permitted for response. If the seller or the assignee fails to request reconsideration of a determination by the Director within 30 calendar days of the date of the determination, then the determination of the Director will be deemed final.
(3) If the seller or the assignee requests reconsideration of a determination by the Director pursuant to subparagraph (a)(2) of this section, and the Director upholds the original determination, then the seller or the assignee may appeal the Director's final determination to the GSM in accordance with the procedures set forth in paragraph (b) of this section. If the seller or the assignee fails to appeal the Director's final determination within 30 calendar days, as provided in § 1493.390(b)(1), then the Director's decision becomes the final determination of CCC.
(b)
(2) If the seller or the assignee does not request an administrative hearing, the seller or the assignee must indicate in its appeal letter whether or not it will submit any additional written information or documentation for the GSM to consider in acting upon its appeal. This information or documentation must be submitted to the GSM within 30 calendar days of the date of the appeal letter to the GSM. The GSM will make a decision regarding the appeal based upon the information contained in the administrative record. The GSM will issue his or her written decision within 60 calendar days of the latter of the date on which the GSM receives the appeal or the date that final documentary evidence is submitted by the seller or the assignee to the GSM.
(3) If the seller or the assignee has requested an administrative hearing, the GSM will set a date and time for the hearing that is mutually convenient for the GSM and the seller or the assignee. This date will ordinarily be within 60 calendar days of the date on which the GSM receives the request for a hearing. The hearing will be an informal procedure. The seller or the assignee and/or its counsel may present any relevant testimony or documentary evidence to the GSM. A transcript of the hearing will not ordinarily be prepared unless the seller or the assignee bears the costs involved in preparing the transcript, although the GSM may decide to have a transcript prepared at the expense of the Government. The GSM will make a decision regarding the appeal based upon the information contained in the administrative record. The GSM will issue his or her written decision within 60 calendar days of the latter of the date of the hearing or the date of receipt of the transcript, if one is to be prepared.
(4) The decision of the GSM will be the final determination of CCC. The seller or the assignee will be entitled to no further administrative appellate rights.
(c)
(d)
(a)
(b)
This document was received at the Office of the Federal Register on September 13, 2016.
| 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 |