Page Range | 69659-69997 | |
FR Document |
Page and Subject | |
---|---|
81 FR 69716 - 2016-2017 Refuge-Specific Hunting and Sport Fishing Regulations | |
81 FR 69993 - Promoting Diversity and Inclusion in the National Security Workforce | |
81 FR 69991 - National Youth Substance Use and Substance Use Disorder Prevention Month, 2016 | |
81 FR 69844 - Statement of Findings: Taos Pueblo Indian Water Rights Settlement Act | |
81 FR 69814 - Draft General Permit Under the Federal Indian Country Minor New Source Review Program | |
81 FR 69782 - Corporation for Travel Promotion (dba Brand USA) | |
81 FR 69813 - Information Session; Implementation of the Water Infrastructure Finance and Innovation Act of 2014 | |
81 FR 69783 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Advance Notification of Sunset Reviews | |
81 FR 69801 - Privacy Act of 1974; System of Records | |
81 FR 69826 - Advisory Committee to the Director (ACD), Centers for Disease Control and Prevention (CDC) | |
81 FR 69790 - Procurement List; Addition and Deletions | |
81 FR 69789 - Procurement List; Proposed Additions and Deletions | |
81 FR 69818 - Notice of Termination; 10281 Independent National Bank; Ocala, Florida | |
81 FR 69818 - Notice of Termination; 10159 Valley Capital Bank, N.A.; Mesa, Arizona | |
81 FR 69780 - Foreign-Trade Zone (FTZ) 82-Mobile, Alabama; Notification of Proposed Production Activity; Airbus Americas, Inc. (Commercial Passenger Jet Aircraft); Mobile, Alabama | |
81 FR 69786 - 1,1,1,2-Tetrafluoroethane (R-134a) From the People's Republic of China: Preliminary Determination of Sales at Less-Than-Fair Value and Affirmative Determination of Critical Circumstances, in Part, and Postponement of Final Determination | |
81 FR 69784 - Notice of Scope Rulings | |
81 FR 69782 - Foreign-Trade Zone (FTZ) 44H-East Hanover, New Jersey; Notification of Proposed Production Activity; Givaudan Flavors Corporation (Flavor Products); East Hanover, New Jersey | |
81 FR 69845 - Notice of Availability of the Final Supplemental Environmental Impact Statement and Proposed Land Use Plan Amendments for Segments 8 and 9 of the Gateway West 500-kV Transmission Line Project, Idaho | |
81 FR 69819 - Proposed Collection; Comment Request | |
81 FR 69902 - Proposed Collection of Information: Offering of U.S. Mortgage Guaranty Insurance Company Tax and Loss Bonds | |
81 FR 69901 - Proposed Collection of Information: Agreement and Request for Disposition of a Decedent's Treasury Securities | |
81 FR 69902 - Proposed Collection of Information: Special Bond of Indemnity to the United States of America | |
81 FR 69822 - National Health and Nutrition Examination Survey (NHANES) DNA Specimens: Guidelines for Proposals To Use Specimens and Cost Schedule | |
81 FR 69827 - 2018 National Health Interview Survey Questionnaire Redesign | |
81 FR 69717 - International Fisheries; Pacific Tuna Fisheries; 2016 Bigeye Tuna Longline Fishery Reopening in the Eastern Pacific Ocean | |
81 FR 69820 - Proposed Collection; Comment Request | |
81 FR 69663 - Special Conditions: Beechcraft, Model A36, Bonanza Airplanes; as Modified by Avionics Design Services, Ltd.; Installation of Rechargeable Lithium Battery | |
81 FR 69828 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
81 FR 69840 - Public Assistance Program Minimum Standards | |
81 FR 69840 - Technical Mapping Advisory Council | |
81 FR 69850 - Notice of Availability for the Final Environmental Impact Statement for the Long-Term Experimental and Management Plan for the Operation of Glen Canyon Dam, Page, Arizona | |
81 FR 69800 - Submission for OMB Review; Comment Request | |
81 FR 69841 - Announcement of the Housing Counseling Federal Advisory Committee Appointment of Members and Notice of Public Meeting | |
81 FR 69813 - Environmental Impact Statements; Notice of Availability | |
81 FR 69774 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Fishery of the South Atlantic Region; Amendment 37 | |
81 FR 69668 - Additions and Modifications to the List of Drug Products That Have Been Withdrawn or Removed From the Market for Reasons of Safety or Effectiveness | |
81 FR 69903 - Additional Designations, Foreign Narcotics Kingpin Designation Act | |
81 FR 69795 - Privacy Act of 1974; System of Records | |
81 FR 69896 - Dakota, Minnesota & Eastern Railroad Corporation-Abandonment Exemption-in Scott County, Iowa | |
81 FR 69779 - Notice of Proposed Changes to the National Handbook of Conservation Practices for the Natural Resources Conservation Service | |
81 FR 69799 - Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (Judicial Proceedings Panel); Notice of Federal Advisory Committee Meeting | |
81 FR 69677 - Certifications and Exemptions Under the International Regulations for Preventing Collisions at Sea, 1972 | |
81 FR 69845 - Notice of Filing of Plats of Survey; Colorado | |
81 FR 69873 - Federal Prevailing Rate Advisory Committee; Cancellation of Upcoming Meeting | |
81 FR 69843 - Aquatic Nuisance Species Task Force Meeting | |
81 FR 69873 - Proposed Collection; Comment Request | |
81 FR 69897 - Cedar Rapids and Iowa City Railway Company-Change in Operator Exemption-Iowa Interstate Railroad, Ltd. | |
81 FR 69859 - National Advisory Committee on Occupational Safety and Health (NACOSH); Charter Renewal | |
81 FR 69859 - Data Users Advisory Committee; Notice of Meeting and Agenda | |
81 FR 69782 - Emerging Technology and Research Advisory Committee; Notice of Open Meeting | |
81 FR 69659 - List of Approved Spent Fuel Storage Casks: NAC International MAGNASTOR® Cask System; Certificate of Compliance No. 1031, Amendment No. 6 | |
81 FR 69719 - List of Approved Spent Fuel Storage Casks: NAC International MAGNASTOR® Cask System; Certificate of Compliance No. 1031, Amendment No. 6 | |
81 FR 69795 - Submission for OMB Review; Comment Request | |
81 FR 69896 - Arkansas Southern Railroad, L.L.C.-Lease Exemption Containing Interchange Commitment-The Kansas City Southern Railway Company | |
81 FR 69663 - FCA Organization; Updates and Technical Corrections | |
81 FR 69803 - Notice of Availability of the Draft Environmental Impact Statement for Millennium Bulk Terminals-Longview, LLC Shipping Terminal, in the Columbia River, Near Longview, Cowlitz County, Washington | |
81 FR 69778 - Ozark-Ouachita Resource Advisory Committee | |
81 FR 69721 - Rulemaking Petition: Political Party Rules | |
81 FR 69722 - Rulemaking Petition: Implementing the Consolidated and Further Continuing Appropriations Act, 2015 | |
81 FR 69856 - Notice of Lodging of Proposed Consent Decree Under the Clean Water Act | |
81 FR 69898 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel Southern Cross; Invitation for Public Comments | |
81 FR 69899 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel Salty Dawg; Invitation for Public Comments | |
81 FR 69900 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel Between Shores; Invitation for Public Comments | |
81 FR 69789 - Proposed Information Collection; Comment Request; Applications and Reports for Registration as a Tanner or Agent | |
81 FR 69855 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension Without Change, of a Previously Approved Collection Procedures for the Administration of Section 5 of the Voting Rights Act of 1965 | |
81 FR 69834 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; Data Use Agreement and Supplement for 2014 Health Center Patient Survey | |
81 FR 69871 - Notice of Centennial Challenges 3D-Printed Habitat Structural Member Challenge | |
81 FR 69803 - Agency Information Collection Activities; Comment Request; State Longitudinal Data System (SLDS) Survey 2017-2019 | |
81 FR 69816 - Farm Credit System Insurance Corporation Board; Regular Meeting | |
81 FR 69856 - Native American Employment and Training Council | |
81 FR 69857 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Notice Requirements of the Health Care Continuation Coverage Provisions | |
81 FR 69858 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Application for a Permit To Fire More Than 20 Boreholes and/or for the Use of Nonpermissible Blasting Units, Explosives, and Shot-Firing Units; Posting Notices of Misfires | |
81 FR 69855 - Notice of Lodging of Consent Decree Under the Clean Water Act | |
81 FR 69817 - Final Notice of Intent To Declare the International Section 214 Authorization of Redes Modernas de la Frontera SA de CV Terminated | |
81 FR 69678 - Drawbridge Operation Regulation; Inner Harbor Navigation Canal, New Orleans, LA | |
81 FR 69819 - Notice of Termination; 10082 Temecula Valley Bank, Temecula, California | |
81 FR 69900 - Model Minimum Uniform Crash Criteria | |
81 FR 69778 - Submission for OMB Review; Comment Request | |
81 FR 69887 - Legg Mason Global Asset Management Trust, et al.; Notice of Application | |
81 FR 69884 - Legg Mason Global Asset Management Trust, et al.; Notice of Application | |
81 FR 69878 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Partial Amendment No. 2 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Partial Amendment No. 2, To Amend Rule 67 Relating to the Tick Size Pilot Program | |
81 FR 69874 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Partial Amendment No. 2 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Partial Amendment No. 2, To Amend Rule 67-Equities Relating to the Tick Size Pilot Program | |
81 FR 69885 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Revise The Options Clearing Corporation's Schedule of Fees | |
81 FR 69889 - Self Regulatory Organizations; Chicago Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rules To Describe Changes Necessary To Implement the Tick Size Pilot Program | |
81 FR 69893 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend FINRA Rule 6191 To Modify the Quoting and Trading Requirements Relating to the Block Size Exception and the Use of Intermarket Sweep Orders and Trade-at Intermarket Sweep Orders | |
81 FR 69881 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Proposed Rule Change To Modify Rule IM-5900-7 To Adjust the Entitlement to Services of Acquisition Companies | |
81 FR 69892 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To Amend Rule 1017, Openings in Options | |
81 FR 69877 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Designation of Longer Period for Commission Action on a Proposed Rule Change To Adopt a New Exception in Exchange Rule 1000(f) for Sub-MPV Split-Priced Orders | |
81 FR 69816 - Information Collection Requirement Being Submitted to the Office of Management and Budget for Emergency Review and Approval | |
81 FR 69809 - Utilization In the Organized Markets of Electric Storage Resources as Transmission Assets Compensated Through Transmission Rates, for Grid Support Services Compensated in Other Ways, and for Multiple Services; Notice of Technical Conference | |
81 FR 69805 - Driftwood LNG, LLC and Driftwood LNG Pipeline Company, LLC; Notice of Intent To Prepare an Environmental Impact Statement for the Planned Driftwood LNG Project, Request for Comments on Environmental Issues, and Notice of Public Scoping Sessions | |
81 FR 69808 - California Department of Water Resources; Notice of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of the Traditional Licensing Process | |
81 FR 69808 - Notice of Availability of Environmental Assessment | |
81 FR 69812 - California Department of Water Resources and Los Angeles Department of Water and Power; Notice of Intent To File License Application, Filing of Pre-Application Document (PAD), Commencement of Pre-Filing Process, and Scoping; Request for Comments on the PAD and Scoping Document, and Identification of Issues and Associated Study Requests | |
81 FR 69804 - National Fuel Gas Supply Corporation; Notice of Request Under Blanket Authorization | |
81 FR 69810 - Texas Eastern Transmission, LP; Notice of Intent To Prepare an Environmental Assessment for the Proposed Marshall County Mine Panel 17w Project Request for Comments on Environmental Issues | |
81 FR 69872 - Agency Information Collection Activities: Proposed Collection; Comment Request; Fidelity Bond and Insurance Coverage for Federal Credit Unions | |
81 FR 69837 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
81 FR 69838 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
81 FR 69836 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
81 FR 69822 - Interagency Per Diem Working Group Meeting Concerning Boundaries To Set Continental United States Lodging and Meals and Incidental Per Diem Reimbursement Rates | |
81 FR 69849 - National Register of Historic Places; Notification of Pending Nominations and Related Actions | |
81 FR 69848 - National Register of Historic Places; Notification of Pending Nominations and Related Actions | |
81 FR 69854 - Notice of Lodging of Proposed Agreement and Order Regarding Modification of the Consent Decree With Respect to TESI Under the Clean Water Act | |
81 FR 69835 - Office of the Director; Amended Notice of Meeting | |
81 FR 69836 - National Institute of Neurological Disorders and Stroke; Notice of Closed Meeting | |
81 FR 69836 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of Closed Meeting | |
81 FR 69835 - Center for Scientific Review; Notice of Closed Meetings | |
81 FR 69844 - Endangered and Threatened Wildlife and Plants; Recovery Permit Application | |
81 FR 69853 - Certain Memory Modules and Components Thereof, and Products Containing Same; Institution of Investigation | |
81 FR 69873 - Data Portability | |
81 FR 69904 - Proposed Information Collection (VA Health Professional Scholarship and Visual Impairment and Orientation and Mobility Professional Scholarship Programs) Activity: Comment Request. | |
81 FR 69903 - Proposed Information Collection (VA Homeless Providers Grant and Per Diem Program) | |
81 FR 69794 - Notice of Intent To Grant an Exclusive Patent License | |
81 FR 69788 - Judges Panel of the Malcolm Baldrige National Quality Award | |
81 FR 69871 - Request for Comments on Proposed OMB Circular No. A-108, “Federal Agency Responsibilities for Review, Reporting, and Publication Under the Privacy Act” | |
81 FR 69780 - Agenda and Notice of Public Meeting of the West Virginia Advisory Committee | |
81 FR 69829 - Medical Device User Fee Amendments; Public Meeting; Request for Comments | |
81 FR 69896 - Reporting and Recordkeeping Requirements Under OMB Review | |
81 FR 69723 - Rules of Procedure Governing Cases Before the Office of Hearings and Appeals | |
81 FR 69729 - Proposed Amendment of Air Traffic Service (ATS) Routes; Eastern United States | |
81 FR 69740 - Wm. Wrigley Jr. Company; Filing of Color Additive Petition | |
81 FR 69752 - Approval and Promulgation of Air Quality Implementation Plans; Texas; Control of Air Pollution From Motor Vehicles, Vehicle Inspection and Maintenance | |
81 FR 69679 - Approval and Promulgation of Air Quality Implementation Plans; Texas; Control of Air Pollution From Motor Vehicles, Vehicle Inspection and Maintenance | |
81 FR 69752 - Approval and Promulgation of Air Quality Implementation Plans; Texas; Infrastructure Requirements for Consultation With Government Officials, Public Notification and Prevention of Significant Deterioration and Visibility Protection for the 2008 Ozone and 2010 Nitrogen Dioxide National Ambient Air Quality Standards | |
81 FR 69685 - Approval and Promulgation of Air Quality Implementation Plans; Texas; Infrastructure Requirements for Consultation With Government Officials, Public Notification and Prevention of Significant Deterioration and Visibility Protection for the 2008 Ozone and 2010 Nitrogen Dioxide National Ambient Air Quality Standards | |
81 FR 69693 - Approval of Nebraska's Air Quality Implementation Plans; Nebraska Air Quality Regulations and State Operating Permit Programs | |
81 FR 69752 - Approval of Nebraska's Air Quality Implementation Plans; Nebraska Air Quality Regulations and State Operating Permit Programs | |
81 FR 69753 - Uniform National Discharge Standards for Vessels of the Armed Forces-Phase II Batch Two | |
81 FR 69860 - Category Management | |
81 FR 69842 - Federal Property Suitable as Facilities To Assist the Homeless | |
81 FR 69908 - Pilot Professional Development | |
81 FR 69740 - Additional PortaCount® Quantitative Fit-Testing Protocols: Amendment to Respiratory Protection Standard | |
81 FR 69696 - Connect America Fund, Connect America Fund-Alaska Plan, Universal Service Reform-Mobility Fund | |
81 FR 69772 - Connect America Fund, Connect America Fund-Alaska Plan; Universal Service Reform-Mobility Fund | |
81 FR 69687 - Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Philadelphia County Reasonably Available Control Technology Under the 1997 8-Hour Ozone National Ambient Air Quality Standards | |
81 FR 69898 - Notice of Final Federal Agency Actions on Proposed Highway Project in Wisconsin | |
81 FR 69731 - Filing Requirements for Electric Utility Service Agreements; Electricity Market Transparency; Revisions to Electric Quarterly Report Filing Process; Electric Quarterly Reports | |
81 FR 69950 - Miscellaneous Changes to Trademark Trial and Appeal Board Rules of Practice | |
81 FR 69666 - Airworthiness Directives; The Boeing Company Airplanes |
Animal and Plant Health Inspection Service
Forest Service
Natural Resources Conservation Service
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Air Force Department
Engineers Corps
Navy Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
Land Management Bureau
National Park Service
Reclamation Bureau
Employment and Training Administration
Labor Statistics Bureau
Occupational Safety and Health Administration
Federal Procurement Policy Office
Federal Aviation Administration
Federal Highway Administration
Maritime Administration
National Highway Traffic Safety Administration
Fiscal Service
Foreign Assets Control Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Nuclear Regulatory Commission.
Direct final rule.
The U.S. Nuclear Regulatory Commission (NRC) is amending its spent fuel storage regulations by revising the NAC International (NAC), MAGNASTOR® Cask System listing within the “List of approved spent fuel storage casks” to include Amendment No. 6 to Certificate of Compliance (CoC) No. 1031. Amendment No. 6 revises NAC-MAGNASTOR technical specifications (TSs) to align with the NAC Multi-Purpose Canister (MPC) and NAC Universal MPC System (UMS) TSs. The CoC No. 1031 TSs require that a program be established and maintained for loading, unloading, and preparing fuel for storage without any indication of duration for the program. Amendment No. 6 limits maintenance of this program until all spent fuel is removed from the spent fuel pool and transport operations are completed. Related training and radiation protection program requirements are modified accordingly. Additionally, Amendment No. 6 incorporates the change to Limiting Condition for Operation (LCO) 3.1.1 previously approved by the NRC in CoC No. 1031 Amendment No. 4.
The direct final rule is effective December 21, 2016, unless significant adverse comments are received by November 7, 2016. If the direct final rule is withdrawn as a result of such comments, timely notice of the withdrawal will be published in the
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
Keith McDaniel, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-5252 or email:
Please refer to Docket ID NRC-2016-0137 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-2016-0137 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.
This rule is limited to the changes contained in Amendment No. 6 to CoC No. 1031 and does not include other aspects of the NAC MAGNASTOR® Cask System design. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured. The amendment to the rule will become effective on December 21, 2016. However, if the NRC receives significant adverse comments on this direct final rule by November 7, 2016, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published in the Proposed Rule section of this issue of the
Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.
A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:
(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:
(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;
(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or
(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.
(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.
(3) The comment causes the NRC staff to make a change (other than editorial) to the rule, CoC, or TSs.
For detailed instructions on filing comments, please see the companion proposed rule published in the Proposed Rule section of this issue of the
Section 218(a) of the Nuclear Waste Policy Act (NWPA) of 1982, as amended, requires that “the Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[the Commission] shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”
To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule which added a new subpart K in part 72 of title 10 of the
By letter dated December 11, 2015, NAC submitted a request to the NRC to amend CoC No. 1031. As documented in the Preliminary Safety Evaluation Report (PSER) and described further below, the NRC staff performed a detailed safety evaluation of the proposed CoC Amendment 6 request. This direct final rule revises the NAC MAGNASTOR® Cask System listing in 10 CFR 72.214 by adding Amendment No. 6 to CoC No. 1031. The amendment consists of the changes described below, as set forth in the revised CoC and TSs. The revised TSs are identified in the PSER.
Amendment No. 6 revises NAC-MAGNASTOR TSs to align with the NAC-MPC and NAC-UMS TSs. The CoC No. 1031 TSs currently require that a program be established and maintained for loading, unloading, and preparing fuel for storage without any indication of duration for the program. Amendment No. 6 clarifies the applicability of TS requirements depending on the status of operations, limiting maintenance of certain programs until all spent fuel is removed from the spent fuel pool and transport operations are completed. Additionally, Amendment No. 6 incorporates the change to LCO 3.1.1 that was previously reviewed and approved by the NRC in Amendment No. 4. The NRC staff determined that Amendment No. 6 does not include changes to cask design requirements and does not reflect a change in design or fabrication of the cask. The NRC staff found that the TS and operating limit changes do not impact the casks ability to continue to safely store spent fuel in accordance with part 72 requirements.
The amended NAC MAGNASTOR® Cask System design, when used under the conditions specified in the CoC, the TSs, and the NRC's regulations, will meet the requirements of 10 CFR part 72; therefore, adequate protection of public health and safety will continue to be ensured. When this direct final rule becomes effective, persons who hold a general license under 10 CFR 72.210 may load spent nuclear fuel into the NAC MAGNASTOR® Cask System casks that meet the criteria of Amendment No. 6 to CoC No. 1031 under 10 CFR 72.212.
The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC will revise the NAC MAGNASTOR® Cask System design listed in 10 CFR 72.214, “List of approved spent fuel storage casks.” This action does not constitute the establishment of a standard that contains generally applicable requirements.
Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).
The action is to amend 10 CFR 72.214 to revise the NAC MAGNASTOR® Cask System listing within the “List of approved spent fuel storage casks” to include Amendment No. 6 to CoC No. 1031. Under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in subpart A of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has made a finding of no significant impact on the basis of this environmental assessment.
This direct final rule amends the CoC for the NAC MAGNASTOR® Cask System design within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. Specifically, Amendment No. 6 revises NAC-MAGNASTOR TSs to align with the NAC-MPC and NAC-UMS TSs. The CoC No. 1031 TSs require that a program be established and maintained for loading, unloading, and preparing fuel for storage without any indication of duration for the program. Amendment No. 6 limits maintenance of this program until all spent fuel is removed from the spent fuel pool and transport operations are completed. Related training and radiation protection program requirements are modified accordingly. Additionally, Amendment No. 6 incorporates the change to LCO 3.1.1 previously approved by the NRC in CoC No. 1031 Amendment No. 4.
On July 18,1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent fuel under a general license in cask designs approved by the NRC. The potential environmental impact of using NRC-approved storage casks was initially analyzed in the environmental assessment for the 1990 final rule. The environmental assessment for this Amendment No. 6 tiers off of the environmental assessment for the July 18, 1990, final rule. Tiering on past environmental assessments is a standard process under the National Environmental Policy Act.
The NAC MAGNASTOR® Cask System is designed to mitigate the effects of design basis accidents that could occur during storage. Design basis accidents account for human-induced events and the most severe natural phenomena reported for the site and surrounding area. Postulated accidents analyzed for an Independent Spent Fuel Storage Installation, the type of facility at which a holder of a power reactor operating license would store spent fuel in casks in accordance with 10 CFR part 72, include tornado winds and tornado-generated missiles, a design basis earthquake, a design basis flood, an accidental cask drop, lightning effects, fire, explosions, and other incidents.
Considering the specific design requirements for each accident condition, the design of the cask would prevent loss of confinement, shielding, and criticality control. If there is no loss of confinement, shielding, or criticality control, the environmental impacts would be insignificant. This amendment does not reflect a change in design or fabrication of the cask. There are no changes to cask design requirements in the proposed CoC amendment. In addition, because there are no design or significant process changes, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 6 would remain well within the 10 CFR part 20 limits. Therefore, the proposed CoC changes will not result in any radiological or non-radiological environmental impacts that differ significantly from the environmental impacts evaluated in the environmental assessment supporting the July 18, 1990, final rule. There will be no significant change in the types or revisions in the amounts of any effluent released, no significant increase in the individual or cumulative radiation exposure and no significant increase in the potential for or consequences from radiological accidents. The NRC staff documented its safety findings in a PSER.
The alternative to this action is to deny approval of Amendment No. 6 and end the direct final rule. Consequently, any 10 CFR part 72 general licensee that seeks to load spent nuclear fuel into the NAC MAGNASTOR® Cask System in accordance with the changes described in proposed Amendment No. 6 would have to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, an interested licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee. Therefore, the environmental impacts would be the same or less than the action.
Approval of Amendment No. 6 to CoC No. 1031 would result in no irreversible commitments of resources.
No agencies or persons outside the NRC were contacted in connection with the preparation of this environmental assessment.
The environmental impacts of the action have been reviewed under the requirements in 10 CFR part 51. Based on the foregoing environmental assessment, the NRC concludes that this direct final rule entitled, “List of Approved Spent Fuel Storage Casks: NAC MAGNASTOR® Cask System, Amendment No. 6” will not have a significant effect on the human environment. Therefore, the NRC has determined that an environmental impact statement is not necessary for this direct final rule.
This rule does not contain any information collection requirements, and is therefore not subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The NRC may not conduct or sponsor, and a person is not required to respond to a request for information or an information collection requirement unless the requesting document displays a currently valid Office of Management and Budget control number.
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and NAC. These entities do not fall within the scope of the definition of small entities set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).
On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in 10 CFR 72.214. On November 21, 2008 (73 FR 70587), the NRC issued an amendment to 10 CFR part 72 that approved the NAC MAGNASTOR® Cask System design by adding it to the list of NRC-approved cask designs in 10 CFR 72.214.
By letter dated December 11, 2015, NAC submitted an application to amend the NAC MAGNASTOR® Cask System as described in Section IV, “Discussion of Changes,” of this document.
The alternative to this action is to withhold approval of Amendment No. 6 and to require any 10 CFR part 72 general licensee seeking to load spent nuclear fuel into the NAC MAGNASTOR® Cask System under the changes described in Amendment No. 6 to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, each interested 10 CFR part 72 licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee.
Approval of the direct final rule is consistent with previous NRC actions. Further, as documented in the PSER and the environmental assessment, the direct final rule will have no adverse effect on public health and safety or the environment. This direct final rule has no significant identifiable impact or benefit on other Government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of the direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and therefore, this action is recommended.
The NRC has determined that the backfit rule (10 CFR 72.62) does not apply to this direct final rule. Therefore, a backfit analysis is not required. This direct final rule revises CoC No. 1031 for the NAC MAGNASTOR® Cask System, as currently listed in 10 CFR 72.214, “List of approved spent fuel storage casks.” Amendment No. 6 revises NAC-MAGNASTOR TSs to align with the NAC-MPC and NAC-UMS TSs. The CoC No. 1031 TSs require that a program be established and maintained for loading, unloading, and preparing fuel for storage without any indication of duration for the program. Amendment No. 6 limits maintenance of this program until all spent fuel is removed from the spent fuel pool and transport operations are completed. Related training and radiation protection program requirements are modified accordingly. Additionally, Amendment No. 6 incorporates the change to LCO 3.1.1 previously approved by the NRC in CoC No. 1031 Amendment No. 4.
Amendment No. 6 to CoC No. 1031 for the NAC MAGNASTOR® Cask System was initiated by NAC and was not submitted in response to new NRC requirements, or an NRC request for amendment. Amendment No. 6 applies only to new casks fabricated and used under Amendment No. 6. These changes do not affect existing users of the NAC MAGNASTOR® Cask System, and Amendment Nos. 1-3, Revisions 1, as well as Revision 1 of the Initial Certificate, and Amendments Nos. 4-5 continue to be effective for existing users. While current CoC users may comply with the new requirements in Amendment No. 6, this would be a voluntary decision on the part of current users. For these reasons, Amendment No. 6 to CoC No. 1031 does not constitute backfitting under 10 CFR 72.62, 10 CFR 50.109(a)(1), or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in 10 CFR part 52. Accordingly, no backfit analysis or additional documentation addressing the issue finality criteria in 10 CFR part 52 has been prepared by the NRC staff.
The Office of Management and Budget has not found this to be a major rule as defined in the Congressional Review Act.
The documents identified in the following table are available to interested persons as indicated.
The NRC may post materials related to this document, including public comments, on the Federal rulemaking Web site at
Administrative practice and procedure, Criminal penalties, Hazardous waste, Indians, Intergovernmental relations, Manpower training programs, Nuclear energy, Nuclear materials, Occupational safety and health, Penalties, Radiation protection, Reporting and recordkeeping requirements, Security measures, Spent fuel, Whistleblowing.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 72:
Atomic Energy Act of 1954, secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 223, 234, 274 (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2210e, 2232, 2233, 2234, 2236, 2237, 2238, 2273, 2282, 2021); Energy Reorganization Act of 1974, secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); National Environmental Policy Act of 1969 (42 U.S.C. 4332); Nuclear Waste Policy Act of 1982, secs. 117(a), 132, 133, 134, 135, 137, 141, 145(g), 148, 218(a) (42 U.S.C. 10137(a), 10152, 10153, 10154, 10155, 10157, 10161, 10165(g), 10168, 10198(a)); 44 U.S.C. 3504 note.
For the Nuclear Regulatory Commission.
Farm Credit Administration.
Notice of effective date.
The Farm Credit Administration (FCA, we, Agency or our) amended our regulations to reflect changes to the FCA's organizational structure and correct the zip code for the field office located in Irving, TX. In addition, references in our regulations to various FCA offices, which have changed, have been revised. We also re-ordered the list of FCA offices into a more logical progression that is consistent with FCA's organizational chart. In accordance with the law, the effective date of the rule is no earlier than 30 days from the date of publication in the
The Farm Credit Administration amended our regulations to reflect changes to the FCA's organizational structure and correct the zip code for the field office located in Irving, TX. In addition, references in our regulations to various FCA offices, which have changed, have been revised. We also re-ordered the list of FCA offices into a more logical progression that is consistent with FCA's organizational chart. In accordance with 12 U.S.C. 2252, the effective date of the final rule is no earlier than 30 days from the date of publication in the
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Beechcraft, Model A36, Bonanza airplane. This airplane, as modified by Avionics Design Services, Ltd., will have a novel or unusual
The effective date of these special conditions is October 7, 2016.
We must receive your comments by November 21, 2016.
Send comments identified by docket number FAA-2016-9224 using any of the following methods:
•
•
•
•
Quentin Coon, Federal Aviation Administration, Aircraft Certification Service, Small Airplane Directorate, ACE-112, 901 Locust, Room 301, Kansas City, MO; telephone (816) 329-4168; facsimile (816) 329-4090.
The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the FAA has determined, in accordance with 5 U.S. C. 553(b)(3)(B) and 553(d)(3), that notice and opportunity for prior public comment hereon are unnecessary because the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.
We invite interested people to take part in this rulemaking
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
On September 17, 2015, Avionics Design Services, Ltd., (Avionics) applied for a supplemental type certificate (STC) to install a rechargeable lithium battery on the Model A36 Bonanza airplane. The Model A36 airplane is a normal category airplane, powered by a single-piston engine that drives an aircraft propeller, with passenger seating up to six (6) and a maximum takeoff weight of 3600 pounds.
The current regulatory requirements for part 23 airplanes do not contain adequate requirements for the application of rechargeable lithium batteries in airborne applications. This type of battery possesses certain failure and operational characteristics with maintenance requirements that differ significantly from that of the nickel-cadmium (Ni-Cd) and lead-acid rechargeable batteries currently approved in other normal, utility, acrobatic, and commuter category airplanes. Therefore, the FAA is proposing this special condition to address (1) all characteristics of the rechargeable lithium batteries and their installation that could affect safe operation of the modified Model A36 airplane, and (2) appropriate Instructions for Continued Airworthiness (ICAW) that include maintenance requirements to ensure the availability of electrical power from the batteries when needed.
Under the provisions of Title 14, Code of Federal Regulations (CFR) 21.101, Avionics must show that the Model A36 airplane, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate Data Sheet No. 3A15
If the Administrator finds that the applicable airworthiness regulations (
In addition to the applicable airworthiness regulations and special conditions, the Model A36 airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in § 11.19, under § 11.38 and they become part of the type certification basis under § 21.101.
Special conditions are initially applicable to the models for which they
The Beechcraft Model A36 airplane will incorporate the following novel or unusual design features:
The installation of a rechargeable lithium battery as a main or engine start aircraft battery.
The applicable part 23 airworthiness regulations governing the installation of batteries in general aviation airplanes, including § 23.1353, were derived from Civil Air Regulations (CAR) 3 as part of the recodification that established 14 CFR part 23. The battery requirements, which are identified in § 23.1353, were a rewording of the CAR requirements that did not add any substantive technical requirements. An increase in incidents involving battery fires and failures that accompanied the increased use of Ni-Cd batteries in aircraft resulted in rulemaking activities on the battery requirements for small airplanes. These regulations were incorporated into § 23.1353(f) and (g), which apply only to Ni-Cd battery installations.
The introduction of lithium batteries into aircraft raises some concern about associated battery or cell monitoring systems and the impact to the electrical system when monitoring components fail. Associated battery or cell monitoring systems (
Lithium batteries typically have different electrical impedance characteristics than Ni-Cd or lead-acid batteries. Avionics needs to evaluate other components of the aircraft electrical system with respect to these characteristics.
Presently, there is limited experience with use of rechargeable lithium batteries and rechargeable lithium battery systems in applications involving commercial aviation. However, other users of this technology, ranging from personal computers, wireless telephone manufacturers to the electric vehicle industry, have noted safety problems with rechargeable lithium batteries. These problems include overcharging, over-discharging, flammability of cell components, cell internal defects, and during exposure to extreme temperatures that are described in the following paragraphs.
1.
2.
3.
4.
5.
These problems experienced by users of lithium batteries raise concern about the use of lithium batteries in aviation. The intent of the proposed special condition is to establish appropriate airworthiness standards for lithium battery installations in the Model A36 airplanes and to ensure, as required by §§ 23.1309 and 23.601, that these battery installations are not hazardous or unreliable.
The special conditions are applicable to the Model A36 airplane. Should Avionics apply at a later date for an STC to modify any other model included on Type Certificate No. 3A15, to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on the Model A36 airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the subject contained herein. Therefore, notice and opportunity for prior public comment hereon are unnecessary and the FAA finds good cause, in accordance with 5 U.S. Code §§ 553(b)(3)(B) and 553(d)(3), making these special conditions effective upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Signs and symbols.
49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.101; and 14 CFR 11.38 and 11.19.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for Beechcraft, Model A36 airplanes modified by Avionics Design Services, Ltd.
The FAA adopts that the following special conditions be applied to lithium battery installations on the Model A36 airplanes in lieu of the requirements § 23.1353(a)(b)(c)(d)(e), amendment 49.
Lithium battery installations on the Model A36 airplanes must be designed and installed as follows:
a. Safe cell temperatures and pressures must be maintained during any probable charging or discharging condition, or during any failure of the charging or battery monitoring system not shown to be extremely remote. The lithium battery installation must be designed to preclude explosion or fire in the event of those failures.
b. Lithium batteries must be designed to preclude the occurrence of self-sustaining, uncontrolled increases in temperature or pressure.
c. No explosive or toxic gasses emitted by any lithium battery in normal operation or as the result of any failure of the battery charging or monitoring system, or battery installation not shown to be extremely remote, may accumulate in hazardous quantities within the airplane.
d. Lithium batteries that contain flammable fluids must comply with the flammable fluid fire protection requirements of 14 CFR 23.863(a) through (d).
e. No corrosive fluids or gases that may escape from any lithium battery may damage airplane structure or essential equipment.
f. Each lithium battery installation must have provisions to prevent any hazardous effect on structure or essential systems that may be caused by the maximum amount of heat the battery can generate during a short circuit of the battery or of its individual cells.
g. Lithium battery installations must have—
(1) A system to control the charging rate of the battery automatically to prevent battery overheating or overcharging, or
(2) A battery temperature sensing and over-temperature warning system with a means for automatically disconnecting the battery from its charging source in the event of an over-temperature condition or,
(3) A battery failure sensing and warning system with a means for automatically disconnecting the battery from its charging source in the event of battery failure.
h. Any lithium battery installation functionally required for safe operation of the airplane, must incorporate a monitoring and warning feature that will provide an indication to the appropriate flight crewmembers, whenever the capacity and state of charge of the batteries have fallen below levels considered acceptable for dispatch of the airplane.
i. The ICAW must contain recommended manufacturer's maintenance and inspection requirements to ensure that batteries, including single cells, meet a functionally safe level essential to the aircraft's continued airworthiness.
(1) The ICAW must contain operating instructions and equipment limitations in an installation maintenance manual.
(2) The ICAW must contain installation procedures and limitations in a maintenance manual, sufficient to ensure that cells or batteries, when installed according to the installation procedures, still meet safety functional levels essential to the aircraft's continued airworthiness. The limitations must identify any unique aspects of the installation.
(3) The ICAW must contain corrective maintenance procedures to check battery capacity at manufacturer's recommended inspection intervals.
(4) The ICAW must contain scheduled servicing information to replace batteries at manufacturer's recommended replacement time.
(5) The ICAW must contain maintenance and inspection requirements how to check visually for battery and charger degradation.
j. Batteries in a rotating stock (spares) that have degraded charge retention capability or other damage due to prolonged storage must be checked at manufacturer's recommended inspection intervals.
k. If the lithium battery application contains software and/or complex hardware, in accordance with AC 20-115
Compliance with the requirements of this Special Condition must be shown by test or analysis, with the concurrence of the New York Aircraft Certification Office.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 747-400, 747-400D, and 747-400F series airplanes. This AD was prompted by a determination that a certain fastener type in the fuel tank walls has insufficient bond to the structure, and an electrical wiring short could cause arcing to occur at the ends of fasteners in the fuel tanks. This AD requires the installation of new clamps and polytetrafluoroethylene (TFE) sleeves on the wire bundles of the front spars and rear spars of the wings. This AD also requires inspecting the existing TFE sleeves under the wire bundle clamps for correct installation, and replacement if necessary. We are issuing this AD to prevent potential ignition sources in the fuel tank in the event of a lightning strike or high-powered short circuit, and consequent fire or explosion.
This AD is effective November 14, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 14, 2016.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet:
You may examine the AD docket on the Internet at
Tung Tran, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6505; fax: 425-917-6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 747-400, 747-400D, and 747-400F series airplanes. 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 and the FAA's response to each comment.
Boeing supported the content of the NPRM. United Airlines had no objection to the NPRM.
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 for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We reviewed Boeing Special Attention Service Bulletin 747-28-2324, Revision 1, dated July 27, 2015. The service information describes procedures for installing new clamps and TFE sleeves on the wire bundles of the front spars and rear spars of the wings. The service information also describes procedures for inspecting TFE sleeves under the wire bundle clamps that were installed using the procedures specified in Boeing Special Attention Service Bulletin 747-28-2324, dated November 3, 2014, for correct installation, and replacing them if necessary. 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 135 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have received no definitive data that enables us to provide cost estimates for the on-condition actions specified in this 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.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator,
49 U.S.C. 106(g), 40113, 44701.
This AD is effective November 14, 2016.
None.
This AD applies to The Boeing Company Model 747-400, 747-400D, and 747-400F series airplanes, certificated in any category, as identified in Boeing Special Attention Service Bulletin 747-28-2324, Revision 1, dated July 27, 2015.
Air Transport Association (ATA) of America Code 28, Fuel.
This AD was prompted by a determination that a certain fastener type in the fuel tank walls has insufficient bond to the structure, and an electrical wiring short could cause arcing to occur at the ends of fasteners in the fuel tanks. We are issuing this AD to prevent potential ignition sources in the fuel tank in the event of a lightning strike or high-powered short circuit, and consequent fire or explosion.
Comply with this AD within the compliance times specified, unless already done.
Within 60 months after the effective date of this AD, do the actions specified in paragraph (g)(1) or (g)(2) of this AD, as applicable.
(1) For airplanes on which the modification specified in Boeing Special Attention Service Bulletin 747-28-2324, dated November 3, 2014, has not been done as of the effective date of this AD: Install new clamps and polytetrafluoroethylene (TFE) sleeves on the wire bundles of the front spars and rear spars of the wings, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747-28-2324, Revision 1, dated July 27, 2015.
(2) For airplanes on which the modification specified in Boeing Special Attention Service Bulletin 747-28-2324, dated November 3, 2014, has been done as of the effective date of this AD: Do a detailed inspection of the TFE sleeves under the wire bundle clamps for correct installation, and replace the sleeves if not correctly installed, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747-28-2324, Revision 1, dated July 27, 2015.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (i) 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, alteration, or modification required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
For more information about this AD, contact Tung Tran, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6505; fax: 425-917-6590; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Special Attention Service Bulletin 747-28-2324, Revision 1, dated July 27, 2015.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet:
(4) You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(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:
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA or the Agency) is amending its regulations to revise the list of drug products that have been withdrawn or removed from the market because the drug products or components of such drug products have been found to be unsafe or not effective. Drugs appearing on this list may not be compounded under the exemptions provided by sections 503A and 503B of the Federal Food, Drug, and Cosmetic Act (the FD&C Act). Specifically, the rule adds 24 entries to this list of drug products, modifies the description of one entry on this list, and revises the list's title and introductory language. These revisions are necessary because information has come to the Agency's attention since March 8, 1999, when FDA published the original list as a final rule.
This rule is effective November 7, 2016.
Edisa Gozun, Center for Drug Evaluation and Research (HFD-310), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 5199, Silver Spring, MD 20993-0002, 301-796-3110.
FDA is amending its regulations to revise the list of drug products that have been withdrawn or removed from the market because the drug products or components of such drug products have been found to be unsafe or not effective (referred to as “the withdrawn or removed list” or “the list”) (§ 216.24 (21 CFR 216.24)). Drugs appearing on the withdrawn or removed list may not be compounded under the exemptions provided by sections 503A and 503B of the FD&C Act. In this final rulemaking, the Agency is finalizing in part the proposed amendments to § 216.24 set forth in the proposed rule published in the
Section 503A of the FD&C Act (21 U.S.C. 353a) refers to a list published by the Secretary of Health and Human Services in the
In addition, section 503B of the FD&C Act (21 U.S.C. 353b) refers to a list published by the Secretary of drugs that have been withdrawn or removed from the market because such drugs or components of such drugs have been found to be unsafe or not effective.
After soliciting public comments and consulting with the Pharmacy Compounding Advisory Committee (Advisory Committee), FDA is issuing this final rule revising and updating the list in § 216.24 for purposes of both sections 503A and 503B of the FD&C Act. FDA may update this list in the future as necessary when information comes to the Agency's attention indicating that changes to the list are needed.
The Agency is not aware of any routine compounding for human use of the drug products that are the subject of this rule, and therefore does not estimate any compliance costs or loss of sales as a result of finalizing regulations making these drugs ineligible for exemptions under sections 503A and 503B of the FD&C Act. The Agency has determined that this rule is not a significant regulatory action as defined by Executive Order 12866.
Section 503A of the FD&C Act describes the conditions that must be satisfied for human drug products compounded by a licensed pharmacist or licensed physician to be exempt from the following three sections of the FD&C Act: (1) Section 501(a)(2)(B) (21 U.S.C. 351(a)(2)(B)) (concerning current good manufacturing practice); (2) section 502(f)(1) (21 U.S.C. 352(f)(1)) (concerning the labeling of drugs with adequate directions for use); and (3) section 505 (21 U.S.C. 355) (concerning the approval of drugs under new drug applications (NDAs) or abbreviated new drug applications (ANDAs)).
Section 503B of the FD&C Act created a new category of “outsourcing facilities.” Outsourcing facilities, as defined in section 503B of the FD&C Act, are facilities that meet certain conditions described in section 503B, including registering with FDA as an outsourcing facility. If these conditions are satisfied, a drug compounded for human use by or under the direct supervision of a licensed pharmacist in an outsourcing facility is exempt from three sections of the FD&C Act: (1) Section 502(f)(1), (2) section 505, and (3) section 582 (21 U.S.C. 360eee-1) (concerning drug supply chain security), but not from section 501(a)(2)(B).
One of the conditions that must be satisfied to qualify for the exemptions under both sections 503A and 503B of the FD&C Act is that the compounder does not compound a drug product that appears on a list published by the Secretary of drug products that have been withdrawn or removed from the market because such drug products or components of such drug products have been found to be unsafe or not effective (withdrawn or removed list) (see sections 503A(b)(1)(C) and 503B(a)(4) of the FD&C Act).
In the
As with the original list, the primary focus of the July 2014 proposed rule and this final rule is on drug products that have been withdrawn or removed from the market because they have been found to be unsafe. FDA may propose at a later date to add other drug products to the list that have been withdrawn or removed from the market because they have been found to be not effective, or to update the list as information becomes available to the Agency regarding products that were withdrawn or removed from the market because they have been found to be unsafe.
In the preamble of the July 2014 proposed rule, FDA also invited comments on the appropriate procedure to update the list in the future. FDA described the provisions of sections 503A and 503B of the FD&C Act regarding how the Agency is to create and update the list, and noted the differences between the procedures set forth in sections 503A and 503B. The Agency explained that it believes that the timely sharing of information about safety concerns relating to compounding drugs for human use is essential to the protection of public health. FDA also explained that it is concerned that consulting with the Advisory Committee and completing the rulemaking process are likely to contribute to substantial delay in updating the list to reflect current safety information. FDA therefore announced that the Agency was seeking an alternative procedure to update the withdrawn or removed list in the future and solicited public comment. FDA also stated that it would specify in the final rule the procedure it will use to update the list in the future.
At a meeting held on February 23 and 24, 2015 (see the
The Agency has considered the record of the February 2015 Advisory Committee deliberations, that Advisory Committee's votes, and the comments submitted on the July 2014 proposed rule (see section III). Based on the information before FDA and its own knowledge and expertise, FDA is:
• Adding 24 entries to the withdrawn or removed list in § 216.24 as written in the proposed rule; and
• Modifying the description of one drug product entry already on this list, bromfenac sodium, to add an exception when the product is compounded under certain circumstances as written in the proposed rule.
Given that nearly identical criteria apply for a drug to be included on the list referred to in section 503A(b)(1)(C) and the list referred to in section 503B(a)(4) of the FD&C Act, FDA is revising and updating the list at § 216.24 for purposes of both sections 503A and 503B. The list in § 216.24 applies to compounders seeking to qualify for the exemptions under section 503A and outsourcing facilities seeking to qualify for the exemptions under section 503B. Drug products that appear on this list have been withdrawn or removed from the market because they have been found to be unsafe or not effective and may not be compounded for human use under the exemptions provided by either section 503A or 503B of the FD&C Act.
After consideration of the comments submitted on the July 2014 proposed rule (see section III of this document), at this time FDA intends to continue updating the list through notice and comment rulemaking, and we are therefore not proposing or adopting an alternative process with the publication of this final rule. We recognize that adding drug products to the list may limit their availability, and the notice and comment process informs interested members of the public of how the Agency proposes to revise the list and gives them an opportunity to contribute to the process. Additionally, we intend to create a Web page, described in more detail in the paragraphs that follow, that contains information about any drugs that we are considering proposing or that we have proposed for addition to the withdrawn or removed list. We believe that the Web page will be a valuable source of timely information for patients, prescribers, and compounders.
In the following paragraphs, FDA discusses its current thinking about the procedures we intend to use to revise the withdrawn or removed list as needed. This discussion does not create rights or impose binding obligations on the Agency. In section III, we respond further to specific comments about whether the Agency should adopt alternative procedures.
We intend to propose regulations to revise the withdrawn or removed list periodically, as appropriate, as we identify drugs that we tentatively determine should be listed. We would also propose regulations when we tentatively determine that changes to the status of drug products already on the list should result in a revision to their listing, for example, if some version of a drug on the list has been approved for marketing. As FDA identifies drugs that it is considering for a future rule proposal, we intend to collect and post together on a single page of the Agency's Web site relevant information about those drugs. The information may include, for example,
If FDA determines that issuing proposed and then final regulations to add a drug product to the withdrawn or removed list before consulting the Advisory Committee is necessary to protect the public health, then it will do so as permitted under section 503A(c)(1) of the FD&C Act. Based on the Agency's experience to date, we expect that this will rarely be necessary, and that we will instead generally consult the Advisory Committee before adding a drug product to the withdrawn or removed list.
When FDA consults the Advisory Committee in the ordinary course, FDA may issue a proposed rule announcing proposed updates to the list prior to convening the Advisory Committee, or it may convene the Advisory Committee first to discuss potential updates and then publish a proposed rule. The order will depend on the timing of the Advisory Committee meetings, the priority of matters that may be brought before the Advisory Committee, and the status of other compounding-related rulemakings. There are numerous steps that must be completed before holding an FDA advisory committee meeting, which make it difficult to schedule a meeting on short notice. For instance: (1) Meeting participants must be contacted to determine their availability, and travel and lodging arrangements must be made; (2) conflict of interest screening and review must be completed before an advisory committee member can participate in a particular matter; (3) a
Regardless of the order in which FDA holds the Advisory Committee meeting and issues a proposed rule, and with the exception noted previously of the likely to be rare instances where FDA determines that it is necessary to revise the list in § 216.24 prior to consultation with the Advisory Committee to protect the public health, FDA will only finalize any additions or modifications to the list after consulting the Advisory Committee about the relevant drug or drugs, and after FDA has provided an opportunity for public comments to be submitted on the proposed rule. In addition to having an opportunity to submit comments on any specific proposals to the docket of the proposed rule, members of the public will also have an opportunity to comment on any potential updates to the list at the Advisory Committee meetings as well. An open public hearing session will be scheduled at each of these meetings, during which interested persons will have an opportunity to submit their views.
In instances where FDA first consults the Advisory Committee about a drug product and subsequently proposes regulations to update the list with a new or modified entry for the drug product, FDA generally does not expect to convene the Advisory Committee a second time before deciding whether to finalize the entry. The Agency may bring the entry back to the Advisory Committee if that is warranted. We do not expect this will occur very often given the opportunity to submit views to the Advisory Committee before the rule is proposed and as evidenced by the fact that we received no comments on 25 of the 26 entries that were proposed for addition or modification to the list in the July 2014 proposed rule.
Seven comments were submitted on the July 2014 proposed rule. Comments were received from two pharmacists; two health professionals; an organization representing health care practitioners, as well as food and dietary supplement companies and consumer advocates; and two organizations representing pharmacists. FDA has summarized and responded to these comments in the following paragraphs.
To make it easier to identify the comments and FDA's responses, the word “Comment,” in parentheses, appears before the comment's description, and the word “Response,” in parentheses, appears before the Agency's response. We have numbered each comment to help distinguish between different comments. Similar comments are grouped together under the same number, and, in some cases, different subjects discussed in the same comment are separated and designated as distinct comments for purposes of FDA's response. The number assigned to each comment or comment topic is purely for organizational purposes and does not signify the comment's value or importance or the order in which the comments were received.
(Comment 1) One comment supported the list in the proposed rule and recommended that FDA finalize the list as soon as possible.
(Response) FDA agrees with the comment.
a.
(Response) FDA disagrees with the suggested revisions. For the reasons that follow, FDA will add all oral drug products containing chloramphenicol to the list in § 216.24.
In the
In December 2015, FDA initiated the process to suspend chloramphenicol ANDA 60-851, which was held by Armenpharm. FDA sent a letter to Armenpharm notifying the company of the Agency's initial determination that Chloromycetin (chloramphenicol) Capsules, 250 mg were withdrawn for reasons of safety or effectiveness and of the Agency's initial decision to suspend approval of ANDA 60-851 (See Docket No. FDA-2011-P-0081). Under § 314.153(b)(2) (21 CFR 314.153(b)(2)), Armenpharm had 30 days from that notification in which to present written comments or information bearing on the initial decision. On December 17, 2016, Armenpharm submitted comments requesting an oral hearing under § 314.153(b)(4). On March 17, 2016, however, Armenpharm withdrew its oral hearing request.
FDA issued a notice in the
After reviewing the comment regarding the proposed oral chloramphenicol entry, FDA reassessed whether to include oral chloramphenicol on the list, and if so, how to describe the entry. FDA's January 2015 review on oral chloramphenicol (available as Tab 8 of Ref. 1 of the briefing document for the February 2015 Advisory Committee meeting) determined that oral chloramphenicol formulations, regardless of the specific oral forms and strengths, are expected to have a safety profile similar to that of chloramphenicol capsules, 250 mg. Furthermore, FDA's January 2015 review on oral chloramphenicol noted that the Agency was not aware of any evidence that chloramphenicol has antiviral activity against causative agents of viral hemorrhagic fever, including Ebola. Chloramphenicol's mechanism of antibacterial action is by binding to the 50S subunit of the bacterial ribosome, a structure not found in viruses. Therefore, there is no putative mechanism to expect antiviral activity.
This FDA review on oral chloramphenicol was presented to the Advisory Committee on February 23, 2015, and the Advisory Committee voted in favor of the Agency's proposal to include all oral drug products containing chloramphenicol on the list.
b.
(Response) For the reasons that follow, FDA declines to modify the entry for adenosine phosphate on the list in § 216.24 at this time.
The preamble of the 1998 proposed rule to establish the original list (see 63 FR 54082, October 8, 1998) stated that adenosine phosphate, formerly marketed as a component of Adeno for injection, Adco for injection, and other drug products, was determined to be neither safe nor effective for its intended uses as a vasodilator and an anti-inflammatory. FDA directed the removal of these drug products from the market in 1973.
After reviewing the comment to the docket of the July 2014 proposed rule regarding the adenosine phosphate entry, FDA began to assess whether to modify the adenosine phosphate entry and, if so, how.
FDA prepared a review on adenosine phosphate (available as Tab 7 of Ref. 1 of the briefing document for the February 2015 Advisory Committee meeting) and consulted with the Advisory Committee on February 23, 2015 on the comment, as discussed in section II.B.
Ultimately, FDA determined that it is unnecessary to modify the entry for adenosine phosphate on the list in § 216.24 at this time. None of the substances raised in the comment (adenosine 5′-monophosphate (AMP), adenosine 5′-diphosphate (ADP), and adenosine 5′-triphosphate (ATP)) satisfy the requirements for a bulk drug substance that may be used in compounding under either section 503A or section 503B.
c.
(Comment 4) FDA received two comments suggesting that the issuance of the July 2014 proposed rule was premature. The comments expressed concern that FDA had proposed adding drug products to the previously existing list of drug products withdrawn from the market for safety and efficacy reasons without first obtaining input from the Advisory Committee. One of the comments further suggested that the proposed rule be withdrawn until such time as the drug products, proposed to be added, could be reviewed by the Advisory Committee.
(Response) FDA notes that the July 2014
(Comment 5) One comment suggested that the Agency should finalize its proposal to publish one list for both section 503A and section 503B of the FD&C Act.
(Response) FDA agrees with this comment.
FDA received comments from five different submitters on the procedure for updating the list.
(Comment 6) FDA received two comments regarding a specific alternative approach to the current process of issuing first a proposed rule followed by a final rule before adopting any additions or modifications to the list. One comment recommended use of an interim final rule or final rule with comment to allow for the flexibility to review public input, yet incorporate the latest safety information into the practice of compounding. Another comment recommended that in instances where public health may be of significant concern, the Agency convene an emergency meeting of the Advisory Committee within 5 business days to obtain specific input and recommendations to the Secretary for immediate inclusion of a drug product on the list.
(Response) As noted previously in section II.C.3, there are numerous steps that must be completed before holding an FDA advisory committee meeting, which make it difficult to schedule a meeting on short notice. In the likely to be rare instances where FDA determines that it is necessary to revise the list in § 216.24 prior to consultation with the Advisory Committee to protect the public health, FDA will add the drug to the list prior to consultation with the Advisory Committee under section 503A(c)(1) of the FD&C Act.
With respect to issuing interim final rules or final rules with comment, the Agency's current thinking is that the process described in section II.C.3 will allow the Agency to provide timely public notice of emerging safety information and appropriate opportunity for interested persons to comment before FDA revises the withdrawn or removed list.
(Comment 7) FDA received a comment suggesting that upon receipt of a notice to withdraw a product from the market for safety and efficacy reasons by the NDA or ANDA holder, FDA inform the Advisory Committee and include a review of that request on the Committee's next scheduled meeting agenda.
(Response) FDA does not agree that it should inform the Advisory Committee when it is advised by an NDA or ANDA holder that the NDA or ANDA holder has removed a drug from the market for safety or efficacy reasons, or that such a drug should necessarily be included on the Advisory Committee's next scheduled meeting agenda. FDA considers but does not rely solely on an NDA or ANDA holder's assertions or representations to determine whether a drug has been withdrawn or removed from the market because it has been found to be unsafe or not effective. Rather, the Agency considers a range of information before the Agency, such as information provided by the NDA or ANDA holder, information contained in the Agency's files, and the Agency's independent evaluation of relevant literature and data on possible postmarketing adverse events. When the Agency decides to propose a change, it will proceed as described previously in section II.C. The timing of any consultation with the Advisory Committee will also depend on, among other things, the timing of the Advisory Committee meetings and the relative priority of matters that may be brought before the Advisory Committee.
(Comment 8) Another comment recommended soliciting public input specifically on how to incorporate the “do not compound” list when publishing intent to withdraw a drug.
(Response) FDA does not believe it is necessary or that it would be efficient to separately solicit public input every time the Agency publishes a notice in the
When the Agency publishes a notice in the
(Comment 9) FDA received several comments opposing any approach to updating the withdrawn or removed list that would eliminate public review from the process. One comment stated that FDA already has the ability to remove from the market any drug that is dangerous and claimed that this does not justify completely eliminating public involvement in the process of making additions to the withdrawn or removed list. Another suggested that additions and changes to the withdrawn or removed list be made through notice and comment rulemaking, observing that such a notice and comment period will allow stakeholders to review FDA's safety and efficacy concerns for a particular drug product prior to addition to the withdrawn or removed list. One comment recommended incorporating public discussion about how to address a drug on the list when convening a drug advisory committee. One suggested all additions to the list go through an advisory committee that is open to public comment. One suggested that no revisions to the list occur without the input and review of the Advisory Committee.
(Response) We appreciate these comments, and as explained in section II.C.3., at this time we have decided not to adopt or propose an alternative process to notice and comment rulemaking for revising the withdrawn or removed list. Additionally, FDA intends to consult the Advisory Committee prior to placing a drug on the withdrawn or removed list unless we determine that the issuance of such regulations before consultation is necessary to protect the public health. These procedures provide ample opportunity for public input regarding additions or modifications to the list, including: (1) An opportunity to present relevant information at an open public hearing held when the Advisory Committee meets to consider proposed revisions to the list and (2) an opportunity to submit comments on each proposed rule before it is finalized.
(Comment 10) One comment recommended that all drug products currently on the list be reviewed by the Advisory Committee on an annual basis to determine whether any change in therapy or use of those drugs necessitates either removal or the clarification of certain salts, dosage forms, or other clinical application to assure accessibility of medications for patients.
(Response) FDA has considered this comment and does not believe it is necessary to require an annual review
(Comment 11) One comment recommended that FDA issue an annual request in the
(Response) FDA disagrees with the suggestion to issue an annual request in the
(Comment 12) One comment stated that nowhere within the proposed rule is there a formal process for reviewing, updating, and informing the compounding community of changes or updates to the list of drugs withdrawn or removed from the market for safety and efficacy reasons. The comment contends this is of grave concern to the pharmacy community and one which must be addressed.
(Response) FDA agrees that the compounding community should be informed of and have an opportunity to review and comment on proposed revisions to the list of drugs at § 216.24, that have been withdrawn or removed from the market because they have been found to be unsafe or not effective. The process outlined in section II.C.3 provides notice and an opportunity to comment to the compounding community and to the general public. Further, as noted elsewhere, members of the compounding community and other members of the public can submit a citizen petition at any time under § 10.30, requesting that FDA modify or remove an entry on the list (with adequate data to support their request), and FDA will consider and respond to the petition.
(Comment 13) One comment suggested that the Secretary establish minimum criteria that must be met before any drug product may be added to the withdrawn or removed list.
(Response) FDA disagrees with this comment. The criteria that must be met to place a drug on the withdrawn or removed list are laid out in the statute. Under sections 503A and 503B of the FD&C Act, drug products on the withdrawn or removed list are those that have been withdrawn or removed from the market because such drug products or components of such drug products have been found to be unsafe or not effective. At this time, FDA does not believe it would be helpful to issue guidance or regulations to further define or interpret this standard. Instead, FDA intends to discuss in any rulemaking the basis for the Agency's proposal to add a drug product to the list or to modify an entry on the list.
(Comment 14) One comment observed that under both sections 503A and 503B of the FD&C Act, drugs may be added to the list if they have been found to be not effective. The comment went on to note that without the crucial check in the rulemaking process afforded by public review, FDA would be able to ban from compounding any drug on the pretext of it being “not effective.”
(Response) As described in section II.C.3, FDA intends to revise the list by using notice-and-comment rulemaking and, generally, to consult the Advisory Committee. Interested members of the public will have the opportunity to submit their views through this process. In addition, in the preamble to the July 2014 proposed rule, FDA observed that as with the original list, the primary focus of the July 2014 proposed rule was on drug products that have been withdrawn or removed from the market because they have been found to be unsafe. FDA further stated that FDA may propose at a later date to add to the list other drug products that have been withdrawn or removed from the market because they have been found to be not effective, or to update the list as information becomes available to the Agency regarding products that have been removed from the market because they have been found to be unsafe.
(Comment 15) One comment suggested that when updating the list, a process be considered by which FDA will consider exemptions (for example, when a drug or drug component may be compounded for a specific formulation, strength, or route of administration).
(Response) FDA agrees that sometimes it may be appropriate to except a specific formulation (including strength), dosage form, or route of administration of a drug on the list. Indeed, as discussed further in FDA's response to the following comment, FDA has already engaged in this practice when it deems such exceptions appropriate. Going forward, when FDA is considering an addition or modification to the list, FDA will continue to consider the appropriateness of such exceptions on a case-by-case basis.
(Comment 16) One comment advised that ingredients should be banned completely and absolutely with great caution.
(Response) With respect to whether drugs on the withdrawn or removed list may be used in compounding, as FDA indicated in the preamble to the July 2014 proposed rule, most drugs on the list may not be compounded in any form. There are, however, two categories of exceptions. In the first category, a particular formulation, indication, dosage form, or route of administration of a drug is explicitly excluded from an entry on the list because an approved drug containing the same active ingredient(s) has not been withdrawn or removed from the market because it has been found to be unsafe or not effective. For such drugs, the formulation, indication, dosage form, or route of administration expressly excluded from the list may be eligible for the exemptions provided in sections 503A and 503B of the FD&C Act. In the second category, some drugs are listed only with regard to certain formulations, concentrations, indications, routes of administration, or dosage forms because they have been found to be unsafe or not effective in those particular formulations, concentrations, indications, routes of administration, or dosage forms.
In addition, FDA notes that just because a drug is on the withdrawn or removed list does not mean it is banned completely and absolutely from compounding. In certain circumstances, if warranted, drugs that have been withdrawn or removed from the market could be made available for use under FDA regulations on expanded access at 21 CFR part 312, subpart I. If conditions in the regulations are met, expanded access programs allow the use of a drug
FDA will apply the statutory standard for placing drugs on the withdrawn or removed list, and intends to follow the process described in section II.C.3 to consult with the Advisory Committee and provide the public with notice and opportunity for comment.
Sections 503A and 503B of the FD&C Act provide the principal legal authority for this final rule. As described in section I of this document, section 503A of the FD&C Act describes the conditions that must be satisfied for human drug products compounded by a licensed pharmacist or licensed physician to be exempt from three sections of the FD&C Act (sections 501(a)(2)(B), 502(f)(1), and 505). One of the conditions that must be satisfied to qualify for the exemptions under section 503A of the FD&C Act is that the licensed pharmacist or licensed physician does not compound a drug product that appears on a list published by the Secretary in the
Section 503B of the FD&C Act describes the conditions that must be satisfied for a drug compounded for human use by or under the direct supervision of a licensed pharmacist in an outsourcing facility to be exempt from three sections of the FD&C Act (sections 502(f)(1), 505, and 582). One of the conditions in section 503B of the FD&C Act that must be satisfied to qualify for the exemptions is that the drug does not appear on a list published by the Secretary of drugs that have been withdrawn or removed from the market because such drugs or components of such drugs have been found to be unsafe or not effective (see section 503B(a)(4)). To be eligible for the exemptions in section 503B, a drug must be compounded in an outsourcing facility in which the compounding of drugs occurs only in accordance with section 503B, including as provided in section 503B(a)(4).
Therefore, sections 503A and 503B of the FD&C Act and our general rulemaking authority in section 701(a) of the FD&C Act (21 U.S.C. 371(a)) together serve as our principal legal authority for this final rule revising FDA's regulations on drug products withdrawn or removed from the market because the drug product or a component of the drug product have been found to be unsafe or not effective in § 216.24.
FDA has determined under 21 CFR 25.30(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
FDA has examined the impacts of the rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612) and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct Agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Agency believes that this rule is not a significant regulatory action as defined by Executive Order 12866.
The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because small businesses are not expected to incur any compliance costs or loss of sales due to this regulation, we certify that this rule will not have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that Agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before issuing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $146 million, using the most current (2015) Implicit Price Deflator for the Gross Domestic Product. We do not expect this rule to result in any 1-year expenditure that would meet or exceed this amount.
This rule amends § 216.24 concerning human drug compounding. Specifically, the rule adds to and modifies the list of drug products that may not be compounded under the exemptions provided by sections 503A and 503B of the FD&C Act because the drug products have been withdrawn or removed from the market because such drug products or components of such drug products have been found to be unsafe or not effective (see section II). The rule adds 24 entries to the list and modifies the description of one drug entry on the list. The Agency is not aware of any routine compounding of these drug products and, therefore, does not estimate any compliance costs or loss of sales as a result of the prohibition against compounding these drugs for human use.
Unless an Agency certifies that a rule will not have a significant economic impact on a substantial number of small entities, the Regulatory Flexibility Act requires Agencies to analyze regulatory options to minimize any significant economic impact of a regulation on small entities. Most pharmacies meet the Small Business Administration definition of a small entity, which is defined as having annual sales less than $25.5 million for this industry. The Agency is not aware of any routine compounding of these drug products and does not estimate any compliance costs or loss of sales to small businesses as a result of the prohibition against compounding these drugs. Therefore, the Agency certifies that this rule will not have a significant economic impact on a substantial number of small entities.
The submission of comments on this rule were submissions in response to a
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that this final rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the Agency concludes that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.
In addition to the references placed on display in the Division of Dockets Management for the proposed rule under Docket No. FDA-1999-N-0194 (formerly 99N-4490), the following reference is on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852 under Docket No. FDA-1999-N-0194 (formerly 99N-4490) and is available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; it is also available electronically at
For the convenience of the reader, the regulatory text of § 216.24 provided with this final rule includes the drug products described in this final rule and the drug products codified by the 1999 final rule.
Drugs, Prescription drugs.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 216 is amended as follows:
21 U.S.C. 351, 352, 353a, 353b, 355, and 371.
The following drug products were withdrawn or removed from the market because such drug products or components of such drug products have been found to be unsafe or not effective. The following drug products may not be compounded under the exemptions provided by section 503A(a) or section 503B(a) of the Federal Food, Drug, and Cosmetic Act:
Department of the Navy, DoD.
Final rule.
The Department of the Navy (DoN) is amending its certifications and exemptions under the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), to reflect that the Deputy Assistant Judge Advocate General (DAJAG) (Admiralty and Maritime Law) has determined that USS SIOUX CITY (LCS 11) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with certain provisions of the 72 COLREGS without interfering with its special function as a naval ship. The intended effect of this rule is to warn mariners in waters where 72 COLREGS apply.
This rule is effective October 7, 2016 and is applicable beginning September 23, 2016.
Commander Theron R. Korsak, JAGC, U.S. Navy, Admiralty Attorney, (Admiralty and Maritime Law), Office of the Judge Advocate General, Department of the Navy, 1322 Patterson Ave. SE., Suite 3000, Washington Navy Yard, DC 20374-5066, telephone number: 202-685-5040.
Pursuant to the authority granted in 33 U.S.C. 1605, the DoN amends 32 CFR part 706.
This amendment provides notice that the DAJAG (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS SIOUX CITY (LCS 11) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I paragraph 2 (a)(i), pertaining to the location of the forward masthead light; Annex I, paragraph 3(a), pertaining to the location of the forward masthead light, and the horizontal distance between the forward and after masthead light. The DAJAG (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.
Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.
Marine safety, Navigation (water), and Vessels.
For the reasons set forth in the preamble, the DoN amends part 706 of title 32 of the Code of Federal Regulations as follows:
33 U.S.C. 1605.
Coast Guard, DHS.
Notice of deviation from drawbridge regulations.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Leon C. Simon Blvd. (Seabrook) (aka Senator Ted Hickey) bascule bridge across the Inner Harbor Navigation Canal, mile 4.6, at New Orleans, Orleans Parish, Louisiana. The deviation is necessary to accommodate The USA Triathlon National Championships, a New Orleans event. This deviation allows the bridge to remain closed-to-navigation for ten hours on Saturday and eight hours on Sunday.
This deviation is effective from 7 a.m. on November 5, 2016 through 3 p.m. on November 6, 2016.
The docket for this deviation, [USCG-2016-0920] is available at
If you have questions on this temporary deviation, call or email Donna Gagliano, Bridge Administration Branch, Coast Guard, telephone (504) 671-2128, email
Premier Event Management, through the Louisiana Department of Transportation and Development (LDOTD), requested a temporary deviation from the operating schedule of the Leon C. Simon Blvd. (Seabrook) (aka Senator Ted Hickey) bascule bridge across the Inner Harbor Navigation Canal, mile 4.6, at New
This deviation is effective on November 5, 2016 through November 6, 2016. The bridge over the Inner Harbor Navigation Canal will be closed to marine traffic from 7 a.m. through 5 p.m. on Saturday and from 7 a.m. through 3 p.m. on Sunday. This deviation allows the bridge to remain closed-to-navigation for the duration of the event on each day.
Navigation on the waterway consists of small tugs with and without tows, commercial vessels, and recreational craft, including sailboats.
Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will be able to open for emergencies, and there is no immediate alternate route. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge 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.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving revisions to the Texas State Implementation Plan (SIP). The revisions to the SIP were submitted in 2015. These revisions are related to the implementation of the state's motor vehicle emissions Inspection and Maintenance (I/M) Program. The EPA is approving these revisions pursuant to the Clean Air Act (CAA).
This rule will be effective on December 6, 2016 without further notice unless EPA receives relevant adverse comments by November 7, 2016. If EPA receives such comments, EPA will publish a timely withdrawal in the
Submit your comments, identified by Docket No. EPA-R06-OAR-2015-0425, at
Mr. John Walser (6PD-L), (214) 665-7128,
Throughout this document, “we,” “us,” and “our” means EPA.
Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that air quality meets the National Ambient Air Quality Standards (NAAQS) established by EPA. The NAAQS are established under section 109 of the CAA and currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. A SIP is a set of air pollution regulations, control strategies, other means or techniques, and technical analyses developed by the state, to ensure that air quality in the state meets the NAAQS. It is required by section 110 and other provisions of the CAA. A SIP protects air quality primarily by addressing air pollution at its point of origin. SIPs can be extensive, containing state regulations or other enforceable documents, and supporting information such as city and county ordinances, monitoring networks, and modeling demonstrations. Each state must submit any SIP revision to EPA for approval and incorporation into the federally-enforceable SIP.
The Texas SIP includes a variety of control strategies, including the regulations that outline requirements for the motor vehicle I/M program for applicable areas of the state.
The 1990 CAA required ozone nonattainment areas classified moderate and higher to have vehicle inspection and maintenance programs to ensure that emission controls on vehicles are properly maintained. CAA sections 182 (b)(4); (c)(3). The Texas motor vehicleI/M program, which is referred to as the Texas Motorist Choice (TMC) Program, was approved by EPA in the
The State's TMC Program requires that gasoline powered light-duty vehicles, and light and heavy-duty trucks between two and twenty-four years old, that are registered or required to be registered in the I/M program area, including fleets, are subject to annual
El Paso, Travis and Williamson County I/M programs are similar and require, in conjunction with the annual safety inspection, for all I/M program vehicles (gasoline powered vehicles from 2 through 24 years old) the administration of the two-speed idle tailpipe test if they are model year 1995 or older, or an OBD test if they are model year 1996 or newer.
The LIRAP is a voluntary program that any county participating in the Texas I/M program may elect to implement to enhance the objectives of the Texas I/M program. The Texas Commission on Environmental Quality (TCEQ) adopted the LIRAP rules on March 27, 2002 at 27 Tex. Reg. 3194. The LIRAP provides funding to assist eligible vehicle owners with emissions-related repairs, retrofits, or the option to retire the vehicle. The LIRAP is funded through a portion of the emissions inspection fee. Vehicle owners who have failed a recent emissions test and who meet the low-income criteria may be eligible. The LIRAP also provides funding for local projects targeted at improving air quality in the counties implementing the LIRAP.
Although the LIRAP is not required by the CAA, certain provisions relating to the program fees have been approved into the Texas SIP to allow for full implementation of the State's I/M program.
On June 9, 2015, the TCEQ submitted SIP revisions to EPA that amended rules related to the implementation of the state's motor vehicle emission I/M program. These revisions are related to replacing the duel windshield sticker system for vehicle inspection and registration with a single vehicle registration insignia sticker and modifying the method used to collect the state portion of the vehicle safety and emissions inspection fee, in addition to minor non-programmatic updates to rule language to correct outdated references and for general clarity.
DPS implemented the changes on March 1, 2015 in all program areas. At present the program areas are: Dallas-Fort Worth area (DFW), Houston-Galveston-Brazoria area (HGB), El Paso area, and the Austin area.
On June 11, 2015, the TCEQ submitted SIP revisions to EPA that amended rules related to the LIRAP. TCEQ amended the state regulations to incorporate a new procedure for counties to opt out of LIRAP and to be released from program obligations, including remittance of the fee to fund the LIRAP. At the time the LIRAP was established, the rules did not specify such a procedure. The revisions define counties participating in, in the process of opting out, and not participating in the LIRAP, and details the fees associated with each county category. It also makes other minor non-programmatic updates to rule language for clarity.
The June 11, 2015 revisions to the SIP change the fee and definitions sections of the LIRAP portion of the I/M rules. These revisions are approvable into the SIP as components of the State's fee structure to implement it's I/M program.
The revisions we are approving address 30 TAC 114, Control of Air Pollution from Motor Vehicles, Subchapter A: Definitions; and Subchapter C, Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program, Division 1: Vehicle Inspection and Maintenance; and Division 3: Early Action Compact Counties. We have prepared a Technical Support Document (TSD) for this action which details our evaluation. Our TSD may be accessed on-line at
To determine the approvability of these I/M revisions, we must determine whether these revisions comply with our Federal I/M requirements at 40 CFR part 51, subpart S, and 40 CFR 85.2222 (Federal I/M Rules) and CAA section182 regarding I/M program requirements.
The June 9, 2015 SIP narrative discusses how the Program meets the above requirements, and we agree with the State's analysis. See 38 Tex. Reg. 7068; 7074-75. Further explanation of our analysis of the adequacy of this submission with respect to I/M requirements can be found in the TSD for this action.
On June 9, 2015, the State adopted revisions to 30 TAC Chapter 114, Control of Air Pollution from Motor Vehicles, Subchapter A, Definitions, Sections 114.1 and 114.2; and Subchapter B: Motor Vehicle Anti-Tampering Requirements, Section 114.21,
The I/M rules require the TCEQ to implement the I/M program in conjunction with the Texas DPS. The I/M rules also authorize the collection of the state's portion of the vehicle emissions inspection fee by the DPS at
30 TAC Chapter 114 Sections 114.1 and 114.2 identify and define the terms used in the State's I/M regulations. Section 114.1(4) is revised to add the phrase “Beginning on the single sticker transition date as defined in this section, the safety inspection certificates will no longer be used” for clarity regarding the single-sticker program. Section 114.1(5) is added to define first vehicle registration. There is no federal definition of the term “first vehicle registration”; but this definition does not conflict with any federal requirement. Sections 114.1(6)—(21) are renumbered to account for the new subsections and contain other non-substantive changes.
Section 114.1(15), is modified to add new text as follows: “Single sticker transition date—The transition date of the single sticker system is the later of March 1, 2015 or the date that the Texas Department of Motor Vehicles (DMV) and the Texas DPS concurrently implement the single sticker system required by the Texas Transportation Code, Section 502.047.”
Section 114.2(1)(A) and (B) are modified to clarify the definitions of accelerated simulation mode (ASM-2) phases, specifically the 50/15 and 25/25 modes. For example, the 25/25 mode tests the vehicle at 25 mile per hour (mph) using 25 percent of the vehicle available horsepower. Section 114.2(12)—Testing Cycle is revised to define the annual testing cycle under the single-sticker program and add the phrase “or beginning on the single sticker transition date, the annual cycle commencing with the first vehicle registration expiration date for which a motor vehicle is subject to a vehicle emissions inspection”. Also, revisions to 114.2(14)—Uncommon Part and addition of 114.2(14)(A)-(C) add additional clarity exceeding remaining time prior to expiration of the safety inspection certificate and the vehicle registration.
These revisions to Sections 114.1 and 114.2 modify the I/M definitions as needed to implement the single-sticker program or are ministerial and add clarification. We therefore find that they are approvable.
Section 114.21—Anti-tampering Exemptions is also revised. However, at the request of TCEQ,
The SIP submittal contains revisions to Subchapter C, Division 1: Vehicle Inspection and Maintenance. Specifically, Section 114.50—Vehicle Emissions Inspection Requirements, includes numerous revisions to Section 114.50(a)(1)-(4), (b)(1)-(6), (c) and (d)(1)-(6)
The submittal contains revisions to Section114.53 (a), (a)(1)-(3), (b)-(d), and (d)(1)-(3) that would exempt emission inspection stations from being required to remit the state's portion of the vehicle emissions inspection fees to the DPS effective March 1, 2015. The revisions also would lower the maximum inspection fee collected by the emissions inspection stations in the DFW, HGB, El Paso and Austin I/M program areas. Effective March 1, 2015, the maximum inspection fee would be lowered by the amount of the state's portion of the vehicle emissions inspection fee that would be collected by the DMV or county tax assessor-collector at the time of registration. Specifically, revisions to Section 114.53—Inspection and Maintenance Fees clarify the fees that must be paid, and timing for an emissions inspection of a vehicle at an inspection station. For example, Section 114.53(a)(2) clarifies the timing of when an emission inspection station required to conduct an emission test may collect fees and the amount. Beginning on the single sticker transition date in the DFW and extended DFW program areas, any emissions inspection station required to conduct an emissions test in accordance with Section 114.50(a)(1)(A) or (B) and (2)(A) or (B) of this title must collect a fee not to exceed $24.50 for each ASM-2 test and $18.50 for each OBD test. Section 114.53 also further defines the timing and fees for each program area in Texas (
Revisions to Section 114.82—Control Requirements include renumbering and the addition of the following text in Section 114.82(a)(2): “Beginning on the single sticker transition date, all applicable air pollution emission control-related requirements included in the annual vehicle safety inspection requirements administered by DPS as evidenced by a current valid registration insignia sticker affixed to the vehicle windshield or a current valid VIR [vehicle inspection report], or other form of proof authorized by the DPS.” Also, Section 114.84—Prohibitions includes revisions prohibiting the circumvention of the vehicle emissions I/M requirements and procedures contained in the Austin Area Early Action Compact Ozone SIP. These revisions strengthen the rule, are consistent with the Texas SIP, and are approvable.
Section 114.87—Inspection and Maintenance Fees, Subsection (a), is revised to include text that states: “In Travis and Williamson counties beginning on the single sticker transition date, any emissions inspection station required to conduct an emissions test in accordance with Section 114.80 of this title must collect a fee not to exceed $11.50 for each on-board diagnostic and two-speed idle test.” Section 114.87(d) is revised as follows: “Effective on the single sticker transition date as defined in Section 114.1 of this title in Travis and Williamson counties, vehicle owners shall remit $4.50 for motor vehicles subject to vehicle emissions inspections to the Texas Department of Motor Vehicles or county tax assessor-collector at the time of the annual vehicle registration as part of the vehicle emission inspection fee.” These revisions define the fees applicable in the Austin Area Early Action Compact area under the single-sticker program, are consistent with the Texas SIP, and are approvable.
The June 11, 2015 SIP narrative discusses how the LIRAP meets the above requirements, and we agree with the State's analysis. Further explanation of our analysis of the adequacy of this submission with respect to I/M requirements can be found in the TSD for this action. The TCEQ had already finalized the revisions in the June 9, 2015 SIP submittal to EPA described in Section III.A of this document, prior to finalizing the revisions in the June 11, 2015 SIP submittal to EPA. Thus, the revisions in the June 11, 2015 submittal to EPA already included the changes that we described in Section III.A, and use that language as a starting point.
On June 11, 2015, the State adopted revisions to 30 TAC Chapter 114, Control of Air Pollution from Motor Vehicles, Subchapter A, Definitions, Section 114.2; Subchapter C, Division 1: Vehicle Inspection and Maintenance, Section 114.53; and Subchapter C, Division 3: Early Action Compact Counties, Sections 114.87, and corresponding revisions to the SIP. The SIP revisions contain a revised narrative, rules, and supporting documentation as outlined in the requirements of the Federal I/M rules.
Section 114.2 identifies and defines the terms used in Subchapter A for the I/M program. In Section 114.2, LIRAP, the acronym for the Low Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program, is replaced with the full program title to be consistent with the title of the referenced subchapter and Texas Register requirements. In Section 114.2 (12) “Related” is changed to “Relating.” The revisions to Section 114.2 are ministerial, and/or add clarification and are approvable.
Section 114.53 details Inspection and Maintenance Fees in nonattainment areas. In Section 114.53(d) “as specified by the following requirements:” is deleted and a period is added after “state”; and in Section 114.53(d)(1) “the following requirements apply” is added after “El Paso County,” and the rest of the paragraph is deleted. These changes are ministerial, add clarification, are necessary for the additions to Section 114.53 described below, and are therefore approvable.
The submittal contains additional substantive changes to Section 114.53, Inspection and Maintenance Fees, that are later mirrored in Section 114.87. Section 114.53(d)(1), (2), and (3) are amended to more fully describe the LIRAP fee as it relates to the vehicleI/M programs in El Paso County and the DFW and HGB area counties. Subparagraphs are added to these subsections to explain remittance of I/M fees, including the LIRAP fee, for the following categories of counties: A county participating in the LIRAP, a participating county that is in the process of opting out of the LIRAP, and a county that is not participating in the LIRAP and is not subject to the LIRAP fee.
The submittal deletes language from Section 114.53(d)(1) regarding the I/M fees for El Paso County in the event that it passed a resolution to participate in the LIRAP, and replaced it with “(1) In El Paso County, the following requirements apply.”, and added new Sections 114.53(d)(1)(A), (B), and (C) which detail the I/M fees for El Paso County for the three LIRAP county categories outlined above.
The submittal deletes language from Section 114.53(d)(2) regarding the I/M fees for DFW and the extended DFW program areas and replaced it with “(2) In the Dallas-Fort Worth and the extended Dallas-Fort Worth program areas, the following requirements apply.” and added new Sections 114.53(d)(2)(A), (B), and (C) which detail the I/M fees for the DFW and the extended DFW program areas for the three county categories outlined above.
The submittal deletes language from Section 114.53(d)(3) regarding the I/M fees for the HGB program area and replaced it with “(2) In the Houston-Galveston-Brazoria program area, the following requirements apply.” and added new sections 114.53(d)(3)(A), (B), and (C) which detail the I/M fees for HGB program area for the three county categories outlined above.
Section 114.87 details I/M fees in Early Action Compact (EAC) areas. The submittal amends Section 114.87 to apply the same changes for nonattainment counties adopted in Section 114.53 to early action compact counties. Section 114.87(d)(1)(2) and (3) explains remittance of I/M fees, including the LIRAP fee, in a county participating in the LIRAP, a participating county that is in the process of opting out of the LIRAP, and a county that is not participating in the LIRAP and not subject to the LIRAP fee.
Section 114.87(d)(1) includes the description of state LIRAP fees vehicle owners pay during vehicle registration in participating EAC counties. Section 114.87(d)(2) describes the state fees vehicle owners pay during vehicle registration in participating EAC counties that are in the process of opting out of the LIRAP, and includes the LIRAP fee until the effective LIRAP fee termination date, after which state fees do not include the LIRAP fee. Section 114.87(d)(3) describes the state fees vehicle owners pay during vehicle registration in non-participating EAC counties, which does not include the LIRAP fee.
As stated previously, the LIRAP is not required by the CAA, but certain provisions relating to the program and program fees have been approved into the Texas SIP to allow for full implementation of the State's I/M program and strengthen the SIP. The changes in the submittal to Sections 114.53 and 114.87 provide further delineation and clarification regarding which parts of the fees are for LIRAP. We find the more detailed breakdown of the LIRAP fees in counties participating, in the process of opting out, and not participating in the LIRAP, approvable because they do not conflict with any federal requirement, and the LIRAP is voluntary.
Section 110(l) of the Act provides that a SIP revision must be adopted by a State after reasonable notice and public hearing. Additionally, section 110(l) states that the EPA cannot approve a SIP revision if that revision would interfere with any applicable requirement regarding attainment, reasonable further
The revisions that create the new opt-out process for the LIRAP do not interfere with any applicable requirement in the CAA, because the LIRAP is not relied upon to meet any required component of the current SIP. Those counties that continue to participate in the LIRAP contribute to air quality improvements with the related LIRAP emission reductions. Even though fewer counties may be participating in the LIRAP due to the opt-out process, the revisions do enhance the current SIP by providing for additional rule clarification.
Pursuant to Sections 110 and 182 of the Act, EPA is approving, through a direct final action, revisions to the Texas SIP that were submitted on June 9, 2015 and June 11, 2015. We are approving revisions to the following sections within Chapter 114 of 30 TAC: 114.1, 114.2, 114.50, 114.53, 114.82-84, and 114.87. We evaluated the state's submittals and determined that they meet the applicable requirements of the CAA. Also, in accordance with CAA section 110(l), the revisions will not interfere with attainment of the NAAQS, reasonable further progress, or any other applicable requirement of the CAA.
EPA is publishing this rule without prior proposal because we view these as non-controversial amendments and anticipate no adverse comments. However, in the proposed rules section of this
In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the revisions to the Texas regulations as described in the Final Action section above. We have made, and will continue to make, these documents generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 6, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition
Samuel Coleman was designated the Acting Regional Administrator on September 30, 2016, through the order of succession outlined in Regional Order R6-1110.1, a copy of which is included in the docket for this action.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur Dioxide, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revisions read as follows:
(c) * * *
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving portions of State Implementation Plan (SIP) submittals from the State of Texas pertaining to Clean Air Act (CAA) section 110(a)(2)(J): Consultation with Government Officials, Public Notification, and Prevention of Significant Deterioration and Visibility Protection for the 2008 Ozone (O
This rule is effective on December 6, 2016 without further notice, unless the EPA receives relevant adverse comment by November 7, 2016. If EPA receives such comment, EPA will publish a timely withdrawal in the
Submit your comments, identified by Docket No. EPA-R06-OAR-2012-0953, at
Sherry Fuerst, 214-665-6454,
Throughout this document “we,” “us,” and “our” means EPA.
On March 12, 2008, EPA revised the levels of the ozone (hereafter the 2008 O
The Texas Commission on Environmental Quality submitted i-SIP demonstrations of how the existing Texas SIP meets the requirements of the 2010 NO
In the proposal, we discussed how the requirements of section 110(a)(2)(J) for both NO
Please see EPA's proposed approval at 81 FR 6483 for our technical evaluation. The evaluation of all subsections of CAA section 110(a)(2)(J) can be found at 81 FR 6483, page 6486. The TSD for 81 FR 6483 is available in the docket, provides additional details to support our determination that this element meets the federal requirements and is fully approvable. We incorporate our previous evaluation of this element into this action. EPA did receive and respond to comments on the proposed action, but none of the comments received were specific to element (J) of CAA section 110(a)(2).
This final action is merely correcting our previous error in failing to propose approval of this element on the basis of our previous technical evaluation and preliminary determination. EPA has not changed its rationale. We therefore are approving the portions of the December 13, 2012, and December 7, 2012, i-SIP submissions from Texas as meeting the infrastructure element (J) for the 2008 ozone NAAQS and the 2010 NO2 NAAQS. We continue to assert that Texas' existing SIP provides for implementation, maintenance, and enforcement of the 2008 O
We are approving portions of the following SIP submittals pertaining to CAA section 110(a)(2)(J): (1) December 13, 2012, SIP submittal for the State of Texas pertaining to the implementation, maintenance and enforcement of the 2008 ozone NAAQS, and; (2) December 7, 2012, SIP submittal pertaining to the implementation, maintenance and enforcement of the 2010 nitrogen dioxide NAAQS as outlined in our February 8, 2016, proposal.
EPA is publishing this rule without prior proposal because we view this as a non-controversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 6, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Samuel Coleman was designated the Acting Regional Administrator on September 30, 2016, through the order of succession outlined in Regional Order R6-1110.1, a copy of which is included in the docket for this action.
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving state implementation plan (SIP) revisions submitted by the Commonwealth of Pennsylvania (Pennsylvania). The revisions pertain to a demonstration that Philadelphia County (Philadelphia) meets the requirements for reasonably available control technology (RACT) of the Clean Air Act (CAA) for nitrogen oxides (NO
This final rule is effective on November 7, 2016.
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2008-0603. All documents in the docket are listed on the
Emlyn Vélez-Rosa, (215) 814-2038, or by email at
On June 15, 2016 (81 FR 38992), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. In the NPR, EPA proposed approval of five revisions to the Pennsylvania SIP to satisfy the RACT requirements for the 1997 8-hour ozone NAAQS for Philadelphia. The formal SIP revisions were submitted by the Pennsylvania Department of Environmental Protection (PADEP), on behalf of Philadelphia Air Management Services (AMS), on September 29, 2006, June 22, 2010, June 27, 2014, February 18, 2015, and April 26, 2016.
Pursuant to section 110(k)(4) of the CAA, on December 13, 2013 (78 FR 75902), EPA conditionally approved the Philadelphia 1997 8-hour ozone RACT demonstration, as provided in the 2006 and 2010 SIP revisions, with the condition that PADEP, on behalf of AMS, submitted additional SIP revisions addressing the source-specific RACT requirements for major sources of NO
On September 29, 2006, PADEP submitted, on behalf of AMS, a SIP revision purporting to address the RACT requirements for Philadelphia under the 1997 8-hour ozone NAAQS. The 2006 SIP revision consisted of a RACT demonstration for Philadelphia, including a certification that previously adopted RACT regulations approved by EPA in Pennsylvania's SIP under the 1-hour ozone NAAQS continue to represent RACT for the 1997 8-hour ozone NAAQS implementation purposes; and a negative declaration that certain VOC source categories that would be covered by Control Technique Guideline (CTG) documents
Another SIP revision addressing RACT requirements for certain VOC source categories covered by CTGs in Philadelphia was submitted by PADEP, on behalf of AMS, on June 22, 2010. The 2010 SIP revision consisted of two new CTG regulations, Air Management Regulation (AMR) V section XV (“Control of Volatile Organic Compounds (VOC) from Marine Vessel Coating Operations”) and AMR V section XVI (“Synthetic Organic Manufacturing Industry (SOCMI) Air Oxidation, Distillation, and Reactor Processes”), and related amendments to AMR V Section I (“Definitions”), as adopted by AMS on April 26, 2010, effective upon adoption. The 2010 SIP revision also included a negative declaration for the CTG source category of natural gas and gasoline processing plants.
On June 27, 2014, February 18, 2015, and April 26, 2016, PADEP submitted to EPA, on behalf of AMS, three separate SIP revisions pertaining to the Philadelphia 1997 8-hour ozone RACT demonstration to fulfill the conditions in EPA's December 13, 2013 conditional approval. The three latest RACT SIP revisions include a RACT evaluation for each major source of NO
AMS evaluated a total of 25 major NO
As part of the source-specific RACT determinations, AMS also certified for certain emissions units at major sources subject to previously approved source-specific RACT determinations, that the existing RACT controls approved under the 1-hour ozone NAAQS continued to represent RACT for the 1997 8-hour ozone NAAQS. Furthermore, AMS addressed another 27 NO
On April 26, 2016, PADEP submitted a letter, on behalf of AMS, withdrawing from the 2006 SIP revision the certification of the Pennsylvania rules related to the NO
After review and evaluation, EPA determined that AMS provided adequate documentation in the September 29, 2006, June 22, 2010, June 27, 2014, February 18, 2015 and April 26, 2016 Philadelphia RACT SIP revisions to support that RACT has been met for all major sources of NO
In this final rulemaking action, EPA determines that the Philadelphia 1997 8-hour ozone NAAQS RACT demonstration, included within the September 29, 2006, June 22, 2010, June 27, 2014, February 18, 2015, and April 26, 2016 SIP revisions, satisfies all applicable RACT requirements under the CAA for Philadelphia for the 1997 8-hour ozone NAAQS. EPA is taking various actions on the revisions to the Pennsylvania SIP addressing Philadelphia 1997 8-hour ozone RACT. EPA is approving as RACT under the 1997 8-hour ozone NAAQS for Philadelphia the certified and recently adopted NO
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
In addition, section 804 exempts from section 801 the following types of rules: Rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because a portion of this rule is a rule of particular applicability, EPA is not required to submit a rule report regarding the portion of this action which is of particular applicability under section 801, but will submit the remainder of the rule.
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 6, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving the Philadelphia RACT requirements under the 1997 8-hour ozone NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
c. In the table in paragraph (e)(1), add the entry “Philadelphia 1997 8-Hour Ozone RACT Demonstration” at the end of the table.
The revisions and additions read as follows:
(c) * * *
(3) * * *
(d) * * *
(1) * * *
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Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State Implementation Plan (SIP) for the State of Nebraska. This action will amend the SIP to include revisions to title 129 of the Nebraska Air Quality Regulations, chapter 5, “Operating Permits—When Required”; chapter 9, “General Operating Permits for Class I and Class II Sources”; chapter 22, “Incinerators; Emission Standards”; chapter 30, “Open Fires”; and chapter 34 “Emission Sources; Testing; Monitoring. These revisions were requested by the Nebraska Department of Environmental Quality (NDEQ) in three submittals, submitted on May 1, 2003, November 8, 2011, and July 14, 2014. The May 1, 2003, submittal revised chapters 5 and 9, to address changes in regard to the permits-by-rule provisions of Title 129. The November 8, 2011, submittal allows for the issuance of multiple operating permits to major sources through revisions to chapter 5. In addition, revisions to chapters 22 and 30 encourage the use of air curtain incinerators over open burning; and changes to chapter 34 clarify the authority of NDEQ to order emission sources to do testing when NDEQ deems it necessary. The July 14, 2014, submittal further revises chapter 34, by updating the reference to allowable test methods for evaluating solid waste, changing the amount of time allowed to submit test results, and allowing the Department to approve a request for testing with less than 30 days notification.
This direct final rule will be effective December 6, 2016, without further notice, unless EPA receives adverse comment by November 7, 2016. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2016-0555, to
Greg Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913-551-7391, or by email at
Throughout this document “we,” “us,” and “our” refer to EPA. This section provides additional information by addressing the following:
EPA is approving revisions into the SIP to include amendments to title 129 of the Nebraska Air Quality Regulations, chapters 5, 22, 30 and 34, as submitted on November 8, 2011. The EPA is also approving additional revisions to chapter 34, as submitted on July 14, 2014, and to chapters 5 and 9, as submitted on May 1, 2003. Revisions to chapter 5 allows for the issuance of multiple operating permits to major sources. The revisions to chapters 22 and 30 encourage the use of air curtain incinerators over open burning and the revisions to chapter 34 as submitted on November 8, 2011, clarify NDEQ's authority to require emission sources to test for contaminant emissions. The revisions to chapter 34 requested in the July 14, 2014, submittal updates the reference to allowable test methods for evaluating solid waste; makes changes to the amount of time allowed to submit test results; and allows NDEQ to approve a request to test with less than 30 days notification.
The revisions to chapter 5 submitted on May 1, 2003, allows a source otherwise subject to the Class II operating permit program to be covered instead by the permits-by-rule provisions, provided the source qualifies. The May 1, 2003 submittal, also revised chapter 9 to allow a source covered for some activities under a general permit be covered for other facilities or activities by a permits-by-rule. Revisions to chapter 5 “Operating Permits—When Required”, submitted on November 8, 2011, clarifies the process for issuing operating permits to major sources comprised of different regulated entities or “persons”. The changes allow each regulated entity more options in applying for operating permits and NDEQ more flexibility in issuing the permits. The revisions to chapter 5 are worded such that sources permitted under the changed language will not avoid other major source obligations. The revisions to chapter 22, “Incinerators; Emission Standards”, establish requirements regarding opacity for air curtain incinerators while revisions to chapter 30, “Open Fires”, allow burning in an air curtain incinerator with a general or community open fire permit issued by NDEQ. Title 129, chapter 34, “Emission Sources; Testing; Monitoring”, as submitted on November 8, 2011, is being revised to clarify NDEQ's authority to order emission sources to make or have tests made to determine the rate of contaminant emissions from the source. The July 14, 2014, submittal further revises chapter 34, by updating the reference to allowable test methods for evaluating solid waste, changes the amount of time allowed to submit test results, and allows NDEQ to approve a request for testing with less than 30 days notification. For additional information on the revisions to chapter 5, 9, 22, 30 and 34 see the detail discussion table in the docket.
The state submittals have met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittals also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
EPA is approving the state's request to revise the SIP to include amendments to title 129, of the Nebraska Air Quality Regulations, chapter 5, “Operating Permits—When Required”; chapter 22, “Incinerators; Emission Standards”; chapter 30, “Open Fires”; and chapter 34, “Emission Sources; Testing; Monitoring”, as submitted by NDEQ on November 8, 2011. Also, EPA is approving NDEQ's July 14, 2014, submittal involving additional revisions to chapter 34 and revisions to chapters 5 and 9, “General Operating Permits for Class I and II Sources”, as submitted on May 1, 2003.
We are publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. EPA does not anticipate adverse comment because the revisions to the existing rules are routine and consistent with the Federal regulations, thereby, strengthening the SIP. However, in the “Proposed Rules” section of this
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Nebraska regulations described in the direct final amendments to 40 CFR part 52 set forth below. Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.
Under the Clean Air Act (CAA), the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
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 and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 6, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, EPA amends 40 CFR parts 52 and 70 as set forth below:
42 U.S.C. 7401
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42 U.S.C. 7401,
(m) The Nebraska Department of Environmental Quality approved revisions to Nebraska Air Quality Regulations, Title 129, Chapter 5, “Operating Permits—When Required”, and Chapter 9, “General Operating Permits for Class I and II Sources”, on September 5, 2002. The State's effective date is November 20, 2002. The revisions were submitted to EPA on May 1, 2003. This revision is effective on December 6, 2016.
(n) The Nebraska Department of Environmental Quality approved revisions to Nebraska Air Quality Regulations, Title 129, Chapter 5, “Operating Permits—When Required”, on December 7, 2007. The State's effective date is February 16, 2008. The revisions were submitted to EPA on November 8, 2011. This revision is effective on December 6, 2016.
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission) adopts an integrated plan to address both fixed and mobile voice and broadband service in high-cost areas of the state of Alaska, building on a proposal submitted by the Alaska Telephone Association.
Effective November 7, 2016, except for §§ 54.313(f)(1)(i), 54.313(f)(3), 54.313(l), 54.316(a)(1), 54.316(a)(5) and (6), 54.316(b)(6), 54.320(d), and 54.321 which contain new or modified information collection requirements that will not be effective until approved by the Office of Management and Budget. The Federal Communications Commission will publish a document in the
Alexander Minard, Wireline Competition Bureau, (202) 418-7400 or TTY: (202) 418-0484, Matthew Warner of the Wireless Telecommunications Bureau, (202) 418-2419, or Audra Hale-Maddox of the Wireless Telecommunications Bureau, (202) 418-0794.
This is a summary of the Commission's Report and Order in WC Docket Nos. 10-90, 16-271, WT Docket No. 10-208; FCC 16-115, adopted on August 23, 2016 and released on August 31, 2016. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW., Washington, DC 20554, or at the following Internet address:
The Further Notice of Proposed Rulemaking (FNPRM) that was adopted concurrently with the Report and Order is published elsewhere in this issue of the
1. In this Order, the Commission adopts an integrated plan to address both fixed and mobile voice and broadband service in high-cost areas of the state of Alaska, building on a proposal submitted by the Alaska Telephone Association. In February 2015, the Alaska Telephone Association (ATA) proposed a consensus plan designed to maintain, extend, and upgrade broadband service across all areas of Alaska served by rate-of-return carriers and their wireless affiliates. Given the unique climate and geographic conditions of Alaska, the Commission finds that it is in the public interest to provide Alaskan carriers with the option of receiving fixed amounts of support over the next ten years to deploy and maintain their fixed and mobile networks. If each of the Alaska carriers elects this option, the Commission expects this plan to bring broadband to as many as 111,302 fixed locations and 133,788 mobile consumers at the end of this 10-year term.
2. Today the Commission adopts ATA's proposed consensus plan for rate-of-return carriers serving Alaska, subject to the minor modifications described herein. Alaskan rate-of-return carriers face unique circumstances including Alaska's large size, varied terrain, harsh climate, isolated populations, shortened construction
3. Accordingly, the Commission adopts the Alaska Plan to provide Alaskan rate-of-return carriers with the option to obtain a fixed level of funding for a defined term in exchange for committing to deployment obligations that are tailored to each Alaska rate-of-return carrier's circumstances. Specifically, the Commission will provide a one-time opportunity for Alaskan rate-of-return carriers to elect to receive support frozen at adjusted 2011 levels for a 10-year term in exchange for meeting individualized performance obligations to offer voice and broadband services meeting the service obligations the Commission adopts in this Order at specified minimum speeds by five-year and 10-year service milestones to a specified number of locations. As proposed by ATA, the Commission delegates to the Wireline Competition Bureau authority to approve such plans if consistent with the public interest and in compliance with the requirements adopted in this Order.
4. As a result of today's action, Alaska rate-of-return carriers have the option of receiving support pursuant to the Alaska Plan, electing to receive support calculated by A-CAM, or remaining on the reformed legacy rate-of-return support mechanisms. Like all other Connect America programs, Alaska Plan participants will report on their progress in meeting their deployment obligations throughout the 10-year term, allowing the Commission, the Regulatory Commission of Alaska, and other interested stakeholders to monitor their progress.
5. ATA represents that collectively, as of year-end 2015, the Alaska rate-of-return carriers served 124,166 remote locations, with 49,062 of those locations lacking broadband at speeds of 10/1 Mbps or above. If all Alaska rate-of-return carriers that have submitted proposed performance plans participate in the Alaska Plan, and those performance plans are approved as submitted, over 36,000 locations will become newly served with broadband at speeds of 10/1 Mbps or above, and the number of locations with 25/3 Mbps service will increase from 8,823 to 77,516 locations. Moreover, under ATA's proposed plan, the 24,138 locations that were unserved by any benchmark at the end of 2015 would be reduced from 24,138 locations to only 758 locations over the term of the Plan.
6. As proposed by ATA, each carrier with an approved performance plan in the Alaska Plan will receive annually an amount of support equal to its HCLS and ICLS frozen at 2011 levels, subject to certain adjustments, as was determined by the Universal Service Administrative Company (USAC) on January 31, 2012. This support will be provided in monthly installments over the 10-year term that the Commission adopts below. The frozen support that participants receive will be adjusted downward to account for the $3,000 per line annual support cap and for the corporate operations expense limits on ICLS.
7. Our decision to freeze support at 2011 levels for Alaska Plan participants is consistent with our decision in 2014 to permit price cap carriers serving non-contiguous areas, such as Alaska Communications Systems (ACS), to elect to receive support that has been frozen at 2011 levels, recognizing the unique circumstances and challenges such carriers face. The Commission is persuaded by the Alaska rate-of-return carriers that making available the adjusted 2011 support levels will provide carriers participating in the Alaska Plan the certainty they need to commit to investing in maintaining and deploying voice and broadband-capable networks in Alaska. The Commission also notes that the average annual support amounts for locations that would be covered under the Alaska Plan is $449, which is within the range of the model-based support offers to the price cap carriers for Phase II.
8. Recognizing the unique, individualized challenges faced by each rate-of return carrier serving Alaska, the Commission addresses here the general public interest obligations that would apply to individual carriers electing to participate in the Alaska Plan. The Commission also adopts general parameters for deployment obligations in this Order. As initially proposed by ATA, rate-of-return carriers wishing to participate in the Alaska Plan must submit a performance plan, and the Wireline Competition Bureau will have delegated authority to review and approve each carrier's performance plan. Since submitting the initial filing regarding the Alaska Plan, ATA has submitted proposed performance plans for its individual members. The Commission authorizes the Wireline Competition Bureau to approve performance plans that adhere to the requirements the Commission has adopted in this Order and that serve the public interest.
9. To merit approval by the Wireline Competition Bureau, these plans shall commit, to the extent possible, to offer at least one voice service and one broadband service that meets these minimum service requirements to a specified number of locations served by the submitting carrier. Carriers must make a binding commitment to serve a specific number of locations in their service area with such minimum speed(s) by the five-year and 10-year service milestones the Commission adopts below. This approach will advance our statutory mandate of using Connect America support to maintain and advance the deployment of voice and broadband services that are reasonably comparable to those offered in urban areas, while at the same time providing individualized flexibility for the distinctive geographic, climate, and infrastructure challenges of deploying and maintaining voice and broadband services in Alaska.
10. Below the Commission provides more specific descriptions of our expectations for the general parameters with respect to speed, latency, data usage, and reasonably comparable prices.
11.
12. The Commission has adopted a minimum speed standard of 10/1 Mbps for price cap carriers receiving Phase II model-based support, winning bidders in the Phase II auction, and rate-of-return carriers receiving A-CAM and legacy support. At the same time, the Commission also is requiring recipients of A-CAM support to offer 25 Mbps/3 Mbps service in more dense areas and
13. Given that the Commission also adopts a 10-year support term for rate-of-return carriers electing to participate in the Alaska Plan, they conclude that the same principles described above apply here, subject to modifications that account for the unique circumstances and challenges faced by each Alaskan carrier. Accordingly, the Commission authorizes the Wireline Competition Bureau to approve performance plans submitted by carriers that maximize the number of locations that receive broadband at speeds of at least 10/1 Mbps and that also identify a set number of locations that will receive broadband at speeds at a minimum 25/3 Mbps as a result of the carrier's deployment, to the extent feasible based on each carrier's individual circumstances. Consistent with the Commission's goal of ensuring access to reasonably comparable broadband service to as many unserved consumers as possible, the Commission expects that Alaska Plan recipients will prioritize their deployment of broadband at speeds of 10/1 Mbps before upgrading speeds for locations that are already served with 10/1 Mbps, to the extent feasible.
14. At the same time, the Commission recognizes that due to limitations in access to middle mile infrastructure and the variable terrain, Alaskan carriers may not be able to serve all of their locations at the current minimum speeds for Connect America Fund recipients of 10/1 Mbps speeds with the support they are provided through the Alaska Plan. Accordingly, the Commission authorizes the Wireline Competition Bureau to approve performance plans that propose to offer Internet service at relaxed speeds to a set number of locations to the extent carriers face such limitations. The Commission concludes it will serve the public interest to balance our goal of deploying reasonably comparable voice and broadband services with our goals of maintaining existing voice service and of ensuring that universal service support is used efficiently and remains within the budgeted amount for each carrier. This approach is also consistent with the approach the Commission has taken for other Connect America funding mechanisms. For example, for rate-of-return carriers that elect to receive A-CAM support, the Commission requires that such carriers offer Internet access at speeds of at least 4/1 Mbps to locations that are not fully funded, to the extent they are unable to do better. And as discussed below, for areas that lack terrestrial backhaul, the Commission has permitted ETCs serving such areas to certify that they are providing speeds of at least 1 Mbps downstream and 256 kbps upstream.
15. Finally, as the Commission discusses in more detail below, they acknowledge that in some limited cases Alaska Plan recipients may face circumstances such that at the beginning of their support terms they can only commit to maintaining Internet service at then-existing speeds below 10/1 Mbps. In such circumstances, carriers will be required to explain why they are unable to commit to upgrade their existing services or deploy service to new locations and the status of these limitations will be revisited throughout the support term.
16.
17. Accordingly, Alaska Plan carriers will be required to certify that 95 percent or more of all peak period measurements of network round-trip latency are at or below 100 milliseconds. Consistent with the standards the Wireline Competition Bureau adopted for price cap carriers serving non-contiguous areas, Alaska Plan participants should conduct their latency network testing from the customer location to a point at which traffic is consolidated for transport to an Internet exchange point in the continental United States. The measurements should be conducted over a minimum of two consecutive weeks during peak hours for at least 50 randomly selected customer locations within the census blocks for which the provider is receiving frozen support using existing network management systems, ping tests, or other commonly available network measurement tools.
18.
19. In the
20. The Commission sees nothing in the record that suggests that participants in the Alaska Plan should not be held to the same standards. Accordingly, such carriers will be required to certify that they offer a minimum usage allowance of 150 GB per month, or a usage allowance that reflects the average usage of a majority of consumers, using Measuring Broadband America data or a similar data source, whichever is higher. As is the case for other ETCs subject to broadband performance obligations, the Wireline Competition Bureau will announce annually the relevant minimum usage allowance.
21.
22. Under our existing rules, to the extent that new terrestrial backhaul facilities are constructed, or existing facilities improve sufficiently to meet the public interest obligations, ETCs are generally required to satisfy the public interest obligations in full within 12 months of the new backhaul facilities becoming commercially available. The Commission similarly expects Alaska Plan recipients to meet latency and data usage requirements for these locations within 12 months. But given that other limiting factors, such as cost or transport limits, in addition to the lack of access to infrastructure, may make it challenging for Alaska carriers to offer a minimum of 10/1 Mbps speeds once they gain access to new backhaul, the Commission does not require carriers participating in the Alaska Plan to meet the 10/1 Mbps speed minimum within the usual 12-month timeframe. The Commission instead directs the Wireline Competition Bureau to consider adopting revised minimum speeds for these carriers when it reassesses their performance plans half way through the 10-year term. The Commission concludes that adjusting speed obligations at that time will alleviate the administrative burden of re-examining performance plans every time backhaul becomes commercially available. The Commission directs the Bureau to work with carriers that seek to participate in the Alaska Plan to include objective metrics for determining when backhaul is available at a price point that would enable the carrier to offer 10/1 Mbps service. The Commission also anticipates that they will consider any additional backhaul that becomes available in determining next steps after the 10-year support term.
23.
24. For voice service, ETCs are required to make an annual certification that the rates for their voice service are in compliance with the reasonable comparability benchmark. For broadband, an ETC has two options for demonstrating that its rates comply with this statutory requirement: certifying compliance with reasonable comparability benchmarks or certifying that it offers the same or lower rates in rural areas as it does in urban areas.
25. Consistent with our other Connect America programs, the Commission adopts this approach for the Alaska Plan. However, due to the unique challenges in deploying voice and broadband-capable networks in Alaska, those carriers that elect to receive Alaska Plan support will be subject to an Alaska-specific reasonable comparability benchmark to be established by the Wireline Competition Bureau. The Commission directs the Wireline Competition Bureau to establish a benchmark using data from its urban rate survey or other sources, as appropriate.
26. The Commission concludes that the public interest obligations the Commission adopts strike the appropriate balance of ensuring that as many Alaska consumers as feasible receive reasonably comparable voice and broadband service while also allowing Alaska Plan participants, who are most familiar with the limitations in access to infrastructure and the climate and geographies they serve, the flexibility to provide service in a way that is logical, maximizes the reach of their network, and is reasonable considering the unique circumstances of each individual carrier's service territory. For price cap carriers serving non-contiguous areas, the Commission determined that due to the circumstances and challenges faced by such carriers that were unique to the areas they serve, a “one-size-fits-all” approach would leave some of those carriers potentially unable to fulfill their deployment obligations. Accordingly, the Commission concluded that “tailoring specific service obligations to the individual circumstances” of each of these carriers “will best ensure that Connect America funding is put to the best possible use.” The Commission concludes that the same principles apply here where the potential recipients within the state of Alaska face their own unique challenges and circumstances due to the variable terrain and their varying levels of access to infrastructure.
27.
28. Based on the shortened construction season for Alaska and the limited availability of personnel to construct networks, the Commission concludes that ATA's proposal to have one service milestone at the mid-point of the term and one service milestone at the end of the support term is reasonable. This will give carriers the flexibility to build out their networks based on the unique conditions and challenges they face and give the Commission an objective measure halfway through the term to monitor the carrier's progress. This data will also be useful for the Bureau to consider when reassessing Alaska Plan recipients' individual deployment obligations halfway through the term of support. The Commission finds that because they give participants the flexibility to propose in their performance plans the number of locations that they commit to offering specified speeds by the five- and 10-year milestones, they will be able to set achievable milestones for themselves based on their individual circumstances. The Commission also notes that while carriers are required to meet these service milestones at a minimum, they anticipate that some carriers will complete their deployment in a shorter timeframe. Carriers will still be required to report their progress on an annual basis, as described below.
29. Consistent with the framework proposed by ATA, the Commission adopts a support term of 10 years for carriers that are authorized to receive support through the Alaska Plan. In the
30. Before the 10-year support term has ended, the Commission expects that the Commission will conduct a rulemaking to decide how support will be determined after the end of the 10-year support term for Alaska Plan participants. As the Commission noted in the
31. Like rate-of-return carriers electing A-CAM support, Alaska Plan recipients will be permitted to use their Alaska Plan support for both operating expenses and capital expenses for new deployment, upgrades, and maintenance of voice and broadband-capable networks. Like recipients of model-based support, they may use that support anywhere in their network to upgrade their ability to offer improved service; they are not limited to using the support only for last mile facilities that traditionally have been supported through the HCLS and ICLS support mechanisms. They no longer will be required to submit line counts; support will be provided for the entire network. An Alaska Plan recipient will be deemed to be offering service if it is willing and able to provide qualifying service to a requesting customer within 10 business days.
32. Alaska Plan participants—like all other ETCs—remain subject to limitations on the appropriate use of universal service support. The Commission recently released a public notice in which it reminded ETCs of their obligation to use high-cost support only for its intended purpose of maintaining and extending communications services to rural, high-cost areas. The public notice listed a number of expenses ETCs are not permitted to recover through high-cost support. These restrictions apply to recipients of frozen support, not just to those who receive support based on traditional cost-of-service rate-of-return principles. In addition, to the extent the Commission revises its expectations for appropriate expenditures in the future, carriers participating in the Alaska Plan will of course be subject to those new rules.
33.
34. In the
35. The Commission adopt the same general approach for determining the presence of a qualifying unsubsidized competitor for the Alaska Plan that they adopted for purposes of determining competitive overlap for CAF BLS. Specifically, a census block will be deemed to be served by an unsubsidized competitor if that competitor offers a qualifying voice and broadband service to at least 85 percent of the residential locations within a given census block. To qualify, the unsubsidized competitor must be a facilities-based provider of residential fixed voice service with the ability to port numbers in the relevant census block, and must offer a broadband service at speeds of at least 10/1 Mbps, at a latency of 100 milliseconds or less, with a usage allowance of at least 150 GB at reasonably comparable rates, utilizing the Alaska-specific benchmark. For purposes of implementing this requirement, the Commission notes that there are certain areas where GCI currently is receiving support for its wireline competitive ETC, but has committed to relinquishing that support as part of the overall Alaska Plan. In implementing this requirement, therefore, the Commission will treat GCI as an unsubsidized competitor in those study areas where it has committed to relinquish its support, to the extent it meets all of the requisite requirements. Like with our other Connect America programs, the Commission finds that it would be an inefficient use of Alaska Plan support to permit recipients to use that support to upgrade or deploy new voice and broadband services where unsubsidized competitors already offer services that meet our standards.
36. Accordingly, the Commission adopts a challenge process for identifying which census blocks that are in Alaska rate-of-return carriers' service areas are served by qualifying unsubsidized competitors and delegate authority to the Wireline Competition Bureau to take any necessary steps to conduct the challenge process. The challenge process shall be conducted using the same general format and rules adopted by the Commission for the challenge process for CAF-BLS recipients. In summary, the Wireline Competition Bureau will publish a public notice with a link to the preliminary list of unsubsidized competitors serving the relevant census blocks according to the most recent publicly available Form 477 data. There will then be a comment period in which unsubsidized competitors, which carry the burden of persuasion, must certify that they offer qualifying voice and broadband services to 85 percent of locations in the relevant census blocks, accompanied by supporting evidence. The Wireline Competition Bureau will then accept submissions from the incumbent or other interested parties seeking to contest the showing made by the competitor. After the conclusion of the comment cycle, the Wireline Competition Bureau will make a final determination of which census blocks are competitively served, weighing all of the evidence in the record.
37. Once the challenge process results have been announced, Alaska Plan participants may petition the Wireline
38. In addition, the Commission directs the Wireline Competition Bureau to reassess the competitive landscape prior to the beginning of the Alaska Plan recipients' fifth year of support. This will provide refreshed competitive coverage data to consider when the Wireline Competition Bureau reassesses whether any adjustments in the Alaska Plan recipients' performance plans should be made for the second half of the 10-year term.
39. Alaskan rate-of-return carriers will have a one-time opportunity to elect to participate in the Alaska Plan. Those carriers that choose not to participate have the option of electing to receive A-CAM support by the applicable deadline or remaining on the reformed legacy support mechanisms.
40. Consistent with the Commission's other programs that provide a fixed support amount for a set term, they will require rate-of-return carriers choosing to participate in the Alaska Plan to do so on a state-level basis rather than at the study area level. The Commission has required price cap carriers and rate-of-return carriers electing model-based support to do so at the state-level to prevent carriers from cherry-picking the study areas that would receive more money from the relevant model and to allow carriers to make business decisions about managing different operating companies on a more consolidated basis. Given Alaska's large size and variable terrain, the Commission recognizes that there may be major differences in the geographic conditions and infrastructure availability for a carrier's various study areas. However, carriers will have the flexibility to take these factors into account when they specify how many locations they will be able to serve and at what broadband speeds in their performance plans at the state-level. Given that this extra flexibility is already provided to carriers electing to participate in the Alaska Plan, the Commission is not convinced that carriers serving Alaska should be given even more flexibility than other rate-of-return carriers by having the ability to choose different funding mechanisms for each of their study areas.
41. The Commission notes that 18 Alaska rate-of-return carriers have already submitted 17 proposed performance plans to the Wireline Competition Bureau. Given that this Order is consistent with ATA's proposal, subject to minor modifications, the Commission presumptively considers these plan commitments to constitute an election to participate in the plan. Alaskan rate-of-return carriers that have already submitted proposed performance plans that choose to update their proposed performance commitments or not participate in the plan in light of this Order should file such updates or provide such notice no later than 30 days from the effective date of this Order. Carriers that have already submitted proposed performance plans should submit any such updated performance plans or provide such notice in WC Docket No. 16-271. Also in light of this Order, the Commission directs the Wireline Competition Bureau to further review the proposed performance commitments on file (or any timely update). While review of their performance plan is pending, carriers will remain on the revised legacy support mechanisms.
42. If the Wireline Competition Bureau concludes that a proposed performance plan meets the applicable requirements and will serve the public interest, it will release a public notice approving the performance plan. The public notice will authorize the carrier to begin receiving support and directing USAC to obligate and disburse Alaska Plan support once certain conditions are met. Support will be conditioned on an officer of the company submitting a letter in WC Docket No. 16-271 certifying that the carrier will comply with the public interest obligations adopted in this Order and the deployment obligations set forth in the adopted performance plan within five days of the release of the public notice or such longer period of time, not to exceed fifteen days, as the Bureau's public notice specifies.
43. Because carriers that are authorized to begin receiving Alaska Plan support will be receiving a frozen support amount for a specified term, like carriers that elected A-CAM support, they must refile their special access tariffs removing the costs of consumer broadband-only loops from the Special Access category, consistent with the
44. If all 19 Alaskan rate-of-return carriers were to participate in the Alaska Plan, this would result in approximately $55.7 million being disbursed annually. This represents an increase over their current support levels, in the aggregate. As described below, to the extent that Alaska Plan recipients' adjusted 2011 frozen support exceeds their 2015 support levels, the excess will be funded using funds that are saved through the phasing down of the competitive ETC support that is currently used to provide service in non-Remote Alaska.
45. Because carriers participating in the Alaska Plan will be receiving a set amount of support over a defined support term in exchange for defined performance obligations over that term, their support will not be subject to the budget controls that the Commission has adopted for HCLS and CAF BLS. This is consistent with our approach for rate-of-return carriers electing A-CAM support. For the purpose of determining the budget amount available for rate-of-return carriers not electing A-CAM support or participating in the Alaska plan, USAC shall treat Alaska Plan
46. Consistent with the action taken when price cap carriers' support was frozen at 2011 levels and the recent decision with respect to rate-of-return carriers that elect A-CAM support, the Commission also directs NECA to rebase the cap on HCLS once Alaska Plan support is authorized for electing rate-of-return carriers that formerly received HCLS. In the first annual HCLS filing following the initial disbursement of Alaska Plan support, NECA shall calculate the amount of HCLS that those carriers would have received in absence of their election, subtract that amount from the HCLS cap, and then recalculate HCLS for the remaining carriers using the rebased amount.
47. ATA proposes that participants be subject to the recordkeeping and compliance requirements set forth in section 54.320(d) of the Commission's rules. The Commission builds on that proposal and require participants in the Alaska Plan to comply with our existing high-cost reporting and oversight mechanisms, unless otherwise modified as described below.
48.
49. The Commission adds a reporting requirement to the Form 481 for Alaska Plan recipients to help the Commission monitor the availability of infrastructure for these carriers. For Alaska Plan recipients that have identified in their adopted performance plans that they rely exclusively on performance-limiting satellite backhaul for certain number of locations, the Commission will require that they certify whether any terrestrial backhaul, or any new generation satellite backhaul service providing middle mile service with technical characteristics comparable to at least microwave backhaul, became commercially available in the previous calendar year in areas that were previously served exclusively by performance-limiting satellite backhaul If a recipient certifies that such new backhaul has become available, it must provide a description of the backhaul technology, the date on which that backhaul was made commercially available to the carrier and the number of locations that are newly served by such new backhaul. Within twelve months of the new backhaul facilities becoming commercially available, funding recipients must certify that they are offering broadband service with latency suitable for real-time applications, including Voice over Internet Protocol, and usage capacity that is reasonably comparable to comparable offerings in urban areas at reasonably comparable rates (using the Alaska-specific reasonable comparability benchmark). Given that the Commission will be adopting tailored deployment obligations for Alaska Plan providers, they exempt them for the requirement that ETCs certify they are offering Internet service at speeds of at least 1 Mbps downstream and 256 kbps upstream to areas served exclusively by performance-limiting satellite backhaul.
50. The Wireline Competition Bureau will be able to consider this data at the mid-point in the 10-year term when it reviews carriers' minimum speed commitments in light of the current marketplace. This data will also be useful for the Commission in determining what steps to take after the 10-year support term for Alaska Plan participants. The Commission concludes that the benefits to the public interest of this oversight will outweigh any potential burdens on Alaska Plan participants, particularly given that they expect Alaska Plan carriers will be monitoring available backhaul to ensure they are maximizing their Alaska Plan support in deploying voice and broadband services.
51. Additionally, consistent with the requirements that apply to all ETCs subject to broadband public interest obligations, the Commission will require each Alaska Plan recipient to certify on an annual basis that it is commercially offering voice and broadband services that meet the public interest obligations they have adopted in this Order at the speeds committed to in its own performance plan, to the locations they reported as required below. This requirement will ensure that the Commission is able to monitor that Alaska Plan recipients are continuing to use their Alaska Plan support for its intended use throughout their support term, and they are continuing to offer service meeting the relevant minimum requirements.
52. For Alaska Plan recipients that propose to maintain their existing networks throughout the 10-year support term without newly deploying or upgrading service to locations within their service areas, the Commission requires that such carriers retain documentation on how much of their Alaska Plan support was spent on capital expenses and operating expenses and be prepared to produce such documentation upon request. Given that these recipients will not be able to demonstrate that they are meeting new service milestones, the Commission concludes that it is reasonable to require them to be prepared to produce documentation to demonstrate how they are using Alaska Plan support. The Commission expects that this requirement will not impose an undue burden on these recipients because they track their capital and operating expenditures in the regular course of business.
53. Finally, the Regulatory Commission of Alaska will submit the annual section 54.314 intended use certification on behalf of Alaska Plan participants, like all ETCs subject to the jurisdiction of a state commission.
54.
55. Alaska Plan participants will be required to submit geocoded location information for their newly offered and upgraded broadband locations starting March 1, 2018 and then by March 1 following each support year. However, like other ETCs subject to this reporting obligation, the Commission expects that Alaska Plan participants will report the information on a rolling basis. A best practice would be to submit the information no later than 30 days after service is initially offered to locations in satisfaction of their deployment obligations.
56. Like other high-cost recipients that are required to meet service milestones for broadband public interest
57. The Commission also adopts a reporting requirement for newly deployed backhaul. The Commission will require Alaska Plan participants to submit fiber network maps or microwave network maps in a format specified by the Bureaus covering eligible areas and to update such maps if they have deployed middle-mile facilities in the prior calendar year that are or will be used to support their service in eligible areas.
58.
59. The Commission acknowledges that certain Alaska rate-of-return carriers may only be able to commit at this point to maintaining existing Internet access at speeds below 10/1 Mbps due to limitations in their access to infrastructure. To the extent that a carrier faces such limitations, it should specify in its performance plan the number of locations where it commits to maintain its existing voice and Internet access service and provide a justification for why it cannot commit to upgrading Internet access to faster speeds within in its service area. The Commission directs the Wireline Competition to monitor these carriers more closely to determine when it is feasible to implement specific deployment obligations. The Commission expects that to the extent such limiting conditions have changed, the Wireline Competition Bureau will revise the carrier's deployment obligations to require that they upgrade their existing service or deploy service to new locations. The Commission concludes that reviewing such carrier's performance plans on a biennial basis rather than at the mid-point of the term will serve the public interest. The Wireline Competition Bureau will be able to monitor that such carriers are effectively utilizing their Alaska Plan support instead of only maintaining the status quo throughout the support term, rather than at a point when they have already received half of their support.
60.
61.
62.
63. In this section, the Commission adopts that part of ATA's integrated plan that addresses high-cost support for competitive ETCs providing mobile service in remote areas of Alaska, subject to the minor modifications described herein. The Commission has previously recognized that competitive ETCs in Alaska's remote regions face conditions unique to the state, and much of Alaska's remote areas remain unserved or underserved by mobile carriers. The Alaska Plan includes a consensus plan among the mobile providers in remote areas of Alaska that provides predictable, stable support to those providers, frozen at 2014 levels for a term of 10 years. As in the Alaska Plan for rate-of-return carriers, the Commission will provide a one-time opportunity for Alaskan competitive ETCs to elect to participate in the Alaska Plan for mobile carriers. Eligible competitive ETCs who elect not to participate in the Alaska Plan will have their support phased out over a period of three years, as proposed by ATA.
64. The Commission requires that participating competitive ETCs submit individual performance plans with deployment commitments at the end of year five and year 10 meeting the requirements adopted in this Order, discussed below. The Commission delegates to the Wireless Telecommunications Bureau authority to approve proposed performance plans if they are consistent with the public interest and comply with the requirements the Commission adopts in this Order. The Commission will require progress reports of the Alaska Plan participants throughout the 10-year
65. The Commission adopts the Alaska Plan for mobile carriers, subject to certain conditions and modifications herein, for the provision of high cost support to competitive ETCs offering mobile service to consumers in remote Alaska. In the course of eliminating the identical support rule, the Commission observed that carriers in remote Alaska had unique concerns and recognized that Mobility Funds needed to be flexible enough to accommodate special conditions in places like Alaska, to account for “its remoteness, lack of roads, challenges and costs associated with transporting fuel, lack of scalability per community, satellite and backhaul availability, extreme weather conditions, challenging topography, and short construction season.” These challenges can drive up costs while the low population bases in these areas strain revenue. The Commission expressed particular concern that “[o]ver 50 communities in Alaska have no access to mobile voice service today, and many remote Alaskan communities have access to only 2G services.” The Commission finds that, given these unique concerns, the Alaska Plan, as modified, is a reasonable approach to promote the provision of mobile voice and broadband service in Alaska. The plan will freeze at current levels the funds that are currently going to mobile providers in remote Alaska in return for specified network deployment commitments. The plan will also create a separate fund that will reallocate a majority of the annual funding currently dedicated to mobile providers in non-remote areas of Alaska and create a reverse auction to expand service in unserved areas of remote Alaska. The Commission finds that the plan they adopt will enable competitive ETCs offering service in remote Alaska to continue operating their current services and to extend and upgrade their existing networks.
66. ATA represents that as of December 31, 2014, the competitive ETCs serving remote Alaska served a population of 143,991 in the areas eligible for frozen support, with only 13,452 of that population receiving 4G LTE service and 66,025 receiving only 2G/voice service. The remaining 64,514 of the population received only 3G service as of that date. If all eight of the competitive ETCs serving remote Alaska that have submitted proposed performance plans participate in the Alaska Plan, by the end of the 10-year term the population receiving 4G LTE service in eligible areas will increase from 9 percent as of December 2014 to 85 percent, or 122,119. Alaskans receiving only 2G/voice will decrease from 46 to 7 percent of the population, or 10,202, while those receiving 3G service only will drop from 45 to 8 percent or 11,669. Moreover, additional support of up to approximately $22 million will be redirected to a reverse auction in which competitive ETCs may bid to receive annual support for 10 years to extend service to areas that do not have any commercial mobile radio service.
67. In adopting the Alaska Plan, the Commission declines to instead adopt ACS's proposed alternative plan involving the creation of a State or non-profit provider of middle mile. As an initial matter, the ACS proposal would require changes to several different universal service mechanisms outside the scope of this proceeding, such as the rural health care and E-Rate mechanisms. The Commission also finds that the alternative plan would involve significant implementation and operational issues regarding the proposed middle mile provider that, at a minimum, would lead to substantial delay and may well not be practical. In addition, the Commission takes into account that the Alaska Plan was developed and presented as a part of an integrated plan for competitive ETCs serving remote Alaska and their affiliated rate-of-return carriers, and that it represents a consensus approach supported by all mobile carriers providing subsidized service in remote Alaska, whereas the ACS alternative appears to have the support of only ACS itself, which does not provide any mobile service in Alaska. Further, while the ACS plan seeks to address the critical need in remote Alaska for new terrestrial middle-mile deployment, it does not provide any specific plan for the high cost support of retail mobile voice and broadband services to consumers—which is the ultimate goal of this proceeding. The Commission also notes that service providers are entitled to use support to construct the facilities required for them to meet their deployment obligations, including using support for improved backhaul and middle mile. Accordingly, the Commission rejects ACS's proposed alternative plan. For the reasons discussed below, the Commission declines to adopt the conditions proposed by ACS, but do provide that the phase down of competitive ETC support of mobile carriers who were not signatories of the Alaska Plan will begin no earlier than 12 months after release of this Order.
68. Each qualifying mobile carrier that elects to participate in the Alaska Plan will receive annually an amount of support equal to their competitive ETC support frozen at December 2014 levels, and participating carriers shall no longer be required to file line counts. This support will be frozen at these levels for 10 years and replaces the identical support phase down schedule for participating competitive ETCs. Our decision to freeze support at December 31, 2014 levels for mobile carriers participating in the Alaska Plan is consistent with our determination that certain areas require ongoing support in order for mobile service to continue to be offered and our goal to ensure universal availability of voice and broadband to homes in rural, insular, and high-cost areas. If the eight eligible competitive ETCs participate in the Alaska Plan, this would result in approximately $74 million being dispersed annually for each of the 10 years that the plan is in effect.
69. The Commission adopts certain public interest obligations for the mobile services that are supported by the Alaska Plan.
70.
71.
72. The Commission reject ACS's request that they require recipients to ensure reasonably comparable rates in their middle mile offerings. While recipients of the plan are free to invest in middle mile to bolster their last-mile mobile offerings, this support is not directly for improving middle-mile offerings to other carriers. As noted above, our overarching goal is to preserve and enhance the provision of broadband service to consumers.
73. The Commission adopts a support term of 10 years for recipients of the Alaska Plan. Given the conditions faced by carriers specifically in remote Alaska, including the vast distance, the extreme weather, and the very short construction seasons, the Commission concludes that a 10-year term of support will serve the public interest. The provision of predictable support over this timeframe will enable providers to undertake long-term plans to invest in and upgrade their mobile network services, while the requirement to file updated proposed deployment obligations during the 10-year term, as discussed below, will ensure that participating competitive ETCs are using their support in a manner that furthers universal service goals.
74. Alaska Plan recipients will be permitted to use their Alaska Plan support for both operating expenses and capital expenses for new deployment, upgrades, and maintenance of mobile voice and broadband-capable networks, including middle-mile improvements needed to those ends. As long as an Alaska Plan participant is offering service in an eligible area, as defined below, and consistent with the public interest obligations delineated in this Order, service in that area will be eligible for support.
75. The Commission reject ACS's request that the Commission condition support under the plan by requiring recipients “to spend at least 70% of their support to deploy and operate terrestrial middle-mile facilities on routes where such facilities do not exist with sufficient capacity to meet demand based on speed and usage benchmarks the Commission has adopted across its universal service mechanisms.” The Commission is not persuaded that requiring that each recipient dedicate 70% of its support to this specific task would best serve the interest of Alaskan consumers. For instance, the Quintillion Subsea Cable System could provide high speed broadband access to mobile providers along the west coast of Alaska, such as for ASTAC and OTZ Wireless, without those carriers having to spend 70% of their support to invest in separate middle-mile buildout. The Commission finds that allowing recipients to invest in middle-mile facilities as needed based on their respective situations would allow these carriers to better target the support that they receive in accordance with their circumstances to meet their deployment obligations.
76. Moreover, the Commission determine that it is not in the public interest to regulate carriers that choose to build middle-mile facilities using support from the plan under dominant carrier regulations. ACS requests that “[c]arriers constructing and operating middle mile facilities where there is no unaffiliated competitive terrestrial service provider . . . be regulated as dominant telecommunications carriers on those routes.” It is not clear what ACS intends to be the consequences of such a condition, or that such a condition is either necessary or in the public interest. The Commission notes that GCI has already indicated that its provision of middle-mile service on the TERRA network is a Title II service provided subject to the common carriage requirements of sections 201 and 202 of the Act.
77. Finally, the Commission declines to adopt ACS's proposed condition to deny transfer of support received by a competitive ETC participating in the Alaska Plan in all instances of transfer of customers or other affiliation or acquisition of one participating carrier by another. The Commission instead delegates to the Wireless Telecommunications Bureau to determine in the context of a particular proposed transaction involving a competitive ETC that is an Alaska Plan participant the extent to which a transfer of a proportionate amount of the transferring carrier's Alaska Plan support, along with what specific performance obligations, would serve the public interest.
78.
79.
80.
81. The Commission finds that the ATA plan's refocus of competitive ETC support in Alaska to the remote areas is reasonable and in the public interest. First, the vast majority of the population of non-remote Alaska is already receiving 4G LTE from a nationwide CMRS provider. Further, while a very small number of people within non-remote Alaska are covered by only subsidized 4G LTE service from a nationwide CMRS provider—AT&T—the Commission is persuaded that AT&T does not need the support that it receives for this small area to continue providing service, given the success of both Verizon and AT&T in providing unsubsidized 4G LTE throughout the majority of non-remote Alaska and the willingness of GCI to forgo future support for its 4G LTE service in that area as well. The Commission notes also that AT&T makes no claim to needing support for this small area and that its own proposed standard of ineligibility would terminate support throughout non-remote Alaska. In addition, while non-remote Alaska is already extensively covered by LTE, numerous small communities in remote Alaska lack adequate or even the most basic mobile service. Under the plan the Commission adopted, funds will be allocated to help improve service and extend deployment to these remote areas, which they find will better serve the goals of universal service than further investment in the significant level of service already enjoyed by consumers living in non-remote Alaska.
82. For this purpose, the Commission will treat a carrier's service in remote areas of Alaska as equivalent to service provided in non-remote areas (and accordingly subject to a three-year phase down in support) if in connection with this service, the carrier did not previously claim the “covered locations” exception to the interim cap on competitive ETC support that the Commission established in 2008. In so doing, the Commission is guided by their approach to high cost support in remote Alaska in the 2011
83. The Commission further provides that, in remote Alaska, eligible areas will include only those census blocks where, as of December 31, 2014, less than 85% of the population was covered by the 4G LTE service of providers that are either currently unsubsidized under the high cost mechanism or subject to a phase down of all current mobile support in the relevant census block. The Commission finds that excluding blocks where there is 4G LTE service being provided that is either unsubsidized or subject to a phase down of support will further our goal of targeting universal service support to areas that will not be served by the market without such support. The Commission also finds the proposed 85% coverage threshold reasonable for remote Alaska. As GCI notes, the use of an 85% threshold is analogous to the threshold used to determine competitive census blocks for rate-of-return carriers in the
84. The Commission declines to adopt AT&T's proposal that all areas covered by 4G LTE service, including remote areas receiving only subsidized 4G LTE service, should be ineligible for support absent a case-by-case waiver. The Commission finds, on the current record, including the unique costs and challenges of service in remote Alaska, the specific cost evidence submitted in the Brattle Group study, the limited extent of 4G LTE deployment in remote Alaska, and the consensus support for the ATA plan, that the approach the Commission adopts will better advance universal service in that region. In sum, the Commission concludes that it is in the public interest to allow competitive
85.
86. Today, the Commission concludes that support provided to overlapped areas in the future should be redistributed to eliminate any instances of duplicate support for 4G LTE service in the manner to be determined once 4G LTE overlap is reevaluated during the fifth year of the plan. As discussed below and in the concurrently adopted FNPRM, the Commission therefore adopts a process for revisiting whether and to what extent there is duplicative funding for 4G LTE service during the first part of the 10-year term, and seek comment on mechanisms for eliminating any such duplicative funding, and for determining how to redistribute any such funds.
87. The Commission will maintain the support levels they adopt today for the first five years of the term to spur 4G LTE deployment in remote Alaska, consistent with the carriers' performance commitments, in order to further our goal of promoting mobile broadband deployment in areas where such deployment has seriously lagged behind the rest of the Nation. To address the potential for duplicative support over time, however, the Commission will evaluate whether there is any overlap in subsidized 4G LTE coverage areas in the fifth year, with the expectation of eliminating any such duplicative support during the second half of the Plan's 10-year term. To do so, the Commission will assess 4G LTE deployment and any overlap in subsidized areas as of December 31, 2020, as reflected in the March 2021 Form 477 filing. Thereafter, based on that assessment as well as additional information in the record in response to the concurrently adopted FNPRM and in the resulting Order, the Commission will implement a process, at the beginning of the sixth year, to eliminate duplicative support to areas where there is more than one provider offering subsidized 4G LTE service. The Commission finds that this approach strikes the appropriate balance in promoting the deployment of 4G LTE services in remote Alaska, where such service has lagged significantly, while providing a mechanism to eliminate any duplicative support that may arise, consistent with our principles of fiscal responsibility and maximizing the impact of limited universal service funds.
88.
89. The Alaska Plan is limited to support of remote areas of Alaska, given the unique challenges faced by providers in those areas. A competitive ETC will be eligible for frozen support pursuant to the Alaska Plan if it serves remote areas in Alaska, and it certified that it served covered locations anywhere in remote areas in Alaska in its September 30, 2011 filing of line counts with the USAC. Competitive ETCs eligible for frozen support under the Alaska Plan will have a one-time opportunity to elect to participate in the Plan.
90. The Commission notes that eight Alaskan mobile carriers have submitted proposed performance plans to the Wireless Telecommunications Bureau. Given that this Order is consistent with ATA's proposal, subject to minor modifications, the Commission presumptively considers these plan commitments to constitute an election to participate in the plan. Alaskan carriers that choose to update their proposed performance commitments or not participate in the plan in light of this Order should file such updates or provide such notice no later than 30 days from the effective date of this Order. Competitive ETCs should submit any such updated performance plans or provide such notice in WC Docket No. 16-271. Also in light of this Order, the Commission directs the Wireless Telecommunications Bureau to further review the proposed performance plans on file (or any timely filed update). While review of their performance plan is pending, carriers will remain on the revised legacy support mechanism. If the Wireless Telecommunications Bureau concludes that a proposed performance plan meets the applicable requirements the Commission adopts in this Order and will serve the public interest, it will release a public notice approving the relevant performance plan. The public notice will authorize the carrier to begin receiving support and direct USAC to obligate and disburse Alaska Plan support once the conditions are met. Support will be conditioned on an officer of the company submitting a letter in WC Docket No. 16-271 certifying that the carrier will comply with the public interest obligations adopted in this Order and the deployment obligations set forth in the adopted performance plan within five days of the release of the Bureau's public notice or such longer period of time, not to exceed fifteen days, as the Bureau's public notice specifies.
91. Competitive ETCs that are eligible but choose not to participate in the Alaska Plan, will have their current support phased down over a three-year period, as proposed in the Alaska Plan, beginning January 1, 2017. Competitive ETCs who are participants in the proposed Alaska Plan and who receive support in non-remote areas of Alaska will have such support phased down over the same period. Because the Commission adopts the Alaska Plan for mobile carriers as an Alaska-specific comprehensive substitute mechanism for mobile high-cost support, they further provide that there will be no support provided under Mobility Fund Phase II or Tribal Mobility Fund Phase II for mobile service within Alaska.
92. The Commission provides a 12-month period from the release date of the Report and Order before the commencement of the three-year phase down of competitive ETC support insofar as it applies to carriers that are not signatories to the Alaska Plan,
93. ATA proposes that, like the rate-of-return participants, competitive ETC participants be subject to the reporting requirements set forth in 54.313 and the recordkeeping and compliance requirements set forth in section 54.320(d) of the Commission's rules. The Commission adopts and build on that proposal, as described below.
94.
95. As with the reporting requirements of Alaskan rate-of-return carriers, the Commission also establishes certain additional reporting requirements for carriers receiving support under the Alaska Plan. First, the Commission adds a reporting requirement to the Form 481 for competitive ETCs that participate in the Alaska Plan to help the Commission monitor the availability of infrastructure for these carriers. For Alaska Plan recipients that have identified in their adopted performance plans that they rely exclusively on performance-limiting satellite backhaul for a certain portion of the population in their service area, the Commission will require that they certify whether any terrestrial backhaul, or any new-generation satellite backhaul service providing middle-mile service with technical characteristics comparable to at least microwave backhaul, became commercially available in the previous calendar year in areas that were previously served exclusively by performance-limiting satellite backhaul. If a recipient certifies that such new backhaul has become available, it must provide a description of the backhaul technology, the date on which that backhaul was made commercially available to the carrier, and the number of the population served by the new backhaul option. Further, the Commission requires those Alaska Plan providers that have not already committed to providing 4G LTE at 10/1 Mbps speeds to the population served by the newly available backhaul by the end of the plan term to submit revised performance commitments factoring in the availability of the new backhaul option no later than the due date of the Form 481 in which they have certified that such backhaul became commercially available. The Commission has not been persuaded to adopt ACS's first three proposed conditions and accordingly also decline to adopt reporting conditions related to these conditions. The Commission does find it appropriate, however, to impose a requirement that all competitive ETCs receiving support under the plan must retain documentation on how much of their Alaska Plan support was spent on capital expenses and operating expenses and be prepared to produce such documentation upon request, which will assist the Commission in enforcing the terms of the plan and ensuring funds are spent efficiently and in the public interest. The Commission expects that this requirement will not impose an undue burden on these recipients because they track their capital and operating expenditures in the regular course of business. Moreover, while the Commission rejects ACS's particular proposal that competitive ETCs should state by December 31, 2017 where they intend to deploy broadband and what middle-mile facilities they will build or lease, the Commission will require Alaska Plan participants to submit fiber network maps or microwave network maps in a format specified by the Bureaus covering eligible areas and to update such maps if they have deployed middle-mile facilities in the prior calendar year that are or will be used to support their service in eligible areas. The Commission finds it will be more helpful to our ongoing assessment of the performance commitments of the recipients to have information on middle mile actually deployed rather than information regarding planned middle-mile deployment.
96.
97.
98.
99. The Commission adopts ATA's proposal to reallocate that support subject to the phase down under the Alaska Plan to support the provision of mobile service in currently unserved Alaskan remote areas, less an amount that they reallocate to Alaska rate-of-return carriers to adjust their support levels, and the Commission provides that the new funding for unserved areas will be distributed through a reverse auction process. The Commission finds that allocating this additional support to fund the deployment of service to currently unserved areas will further the goal of ensuring “universal availability of modern networks capable of providing mobile voice and broadband service where Americans live, work, and travel.” As support to non-remote competitive ETCs phases down, up to approximately $22 million of support annually will be available to support mobile service in currently unserved remote areas, with such support to be awarded through a reverse auction. Any competitive ETC, including competitive ETCs that do not otherwise receive support for mobile service in remote Alaska, may bid in the auction to receive annual support through the remainder of the Plan term to extend service to areas that do not have commercial mobile radio service as of December 31, 2014. The Commission provides that, for the purposes of this support, “unserved” areas are those census blocks where less than 15% of the population within the census block was within any mobile carrier's coverage area. The Commission further provides that the reverse auction will be subject to the competitive bidding rules codified at Part 1 Subpart AA of the Commission's rules and delegate to the Wireless Telecommunications Bureau authority to otherwise determine the applicable procedures and performance requirements to implement the reverse auction as established today.
100. This document contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new information collection requirements contained in this proceeding. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
101. The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
102. As required by the Regulatory Flexibility Act of 1980 (RFA), as amended, an Initial Regulatory Flexibility Analyses (IRFA) was incorporated in the
103. In the Report and Order, the Commission adopts the Alaska Plan for rate-of-return carriers and competitive eligible telecommunications carriers serving Alaska to support the deployment of voice and broadband-capable wireline and mobile networks in Alaska.
104. The Commission provides Alaskan rate-of-return carriers with the option to obtain a fixed level of funding for a defined term in exchange for committing to deployment obligations that are tailored to each Alaska rate-of-return carrier's unique circumstances. Specifically, the Commission will provide a one-time opportunity for Alaskan rate-of-return carriers to elect to receive support in an amount equal to adjusted 2011 levels for a 10-year term. The Commission directs the Wireline Competition Bureau to review proposed performance commitments. Alaskan rate-of-return carriers can elect to participate in the Alaska Plan, or can choose to receive support from the Alternative Connect America Cost Model (A-CAM) or remain on the reformed legacy mechanisms. Like all other Connect America programs, the Commission will monitor Alaska Plan participants' progress in meeting their deployment obligations throughout the 10-year term.
105. The Commission additionally provides competitive ETCs serving remote areas of Alaska the option to obtain a fixed level of funding for a defined term in exchange for committing to performance obligations that are tailored to each competitive ETC's unique circumstances. Specifically, the Commission will provide a one-time opportunity for competitive ETCs serving remote areas of Alaska to elect to receive support frozen, for a majority of the carriers, at the levels the carriers received as of December 2014, and for one carrier at its March 2015 level. The Commission requires mobile carriers that wish to elect to participate in the Alaska Plan to submit performance plans indicating the population in their service area to which they will offer mobile service, the type of technology for last mile and middle mile, and minimum upload and download speeds meeting the public interest obligations the Commission adopt in this Order at five-year and ten-year service milestones. The Commission delegates to the Wireless Telecommunications Bureau authority to approve such plans if the Wireless Telecommunications Bureau determines they are consistent with the public interest and comply with the requirements adopted in this Order. Competitive ETCs serving remote areas of Alaska that are not signatories to Alaska Plan and competitive ETCs that serve non-remote areas of Alaska will have their support phased down over a three-year period. Competitive ETC support insofar as it applies to carriers that are not signatories to the Alaska Plan will be subject to a 12 month period from the release date of the Report and Order before the commencement of the three-year phase down. Alaskan providers will not be eligible for any additional support for mobile services under our proposed Mobility Fund Phase II and Tribal Mobility Fund Phase II programs. Like all other high-cost programs, the Commission will monitor Alaska Plan participants' progress in meeting their deployment obligations throughout the 10-year term.
106. There were no comments raised that specifically addressed the proposed rules and policies presented in the
107. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rule(s) as a result of those comments.
108. The Chief Counsel did not file any comments in response to the proposed rule(s) in this proceeding.
109. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
110. Total Small Entities. Our proposed action, if implemented, may, over time, affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three comprehensive, statutory small entity size standards. First, nationwide, there are a total of approximately 28.2 million small businesses, according to the SBA, which represents 99.7% of all businesses in the United States. In addition, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,215 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2011 indicate that there were 90,056 local governmental jurisdictions in the United States. The Commission estimates that, of this total, as many as 89,327 entities may qualify as “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.
111. In the Report and Order, for rate-of-return carriers, the Commission directs the Wireline Competition Bureau to review proposed performance plans from Alaskan rate-of-return carriers interested in participating in the Alaska Plan that specify the number of locations they commit to serve and the minimum speeds. The Wireline Competition Bureau will release a public notice approving the plan.
112. Alaska Plan rate-of-return participants will be given a 10-year term of support and will be required to offer voice and broadband service meeting certain latency, data usage, and reasonably comparable rate obligations. In their performance plans, Alaska Plan rate-of-return recipients will commit to offer such service to a certain number of locations in their service areas at specified minimum speeds by the end of the fifth year of their support term and by the end of the 10th year of their support term, or in the alternative maintain existing voice and broadband service meeting the relevant public interest obligations to a specified number of locations. Alaska Plan rate-of-return recipients that fail to meet their service milestones will be subject to certain non-compliance measures, including support reductions and reporting. No later than the end of the fourth year of support, Alaska Plan rate-of-return recipients must update their end-of-term commitments, which will be reviewed by the Wireline Competition Bureau, taking into account such factors as improved access to middle mile infrastructure and updated competitive coverage. The Wireline Competition Bureau will reassess the approved performance plans of carriers that commit to maintain existing service more frequently.
113. Carriers electing to participate will be required to submit a letter from an officer of the company certifying that they will comply with the required public interest obligations and performance obligations set forth in their approved performance plan. To monitor Alaska Plan rate-of-return recipients' use of support to ensure it is used for its intended purpose, the Commission has imposed several reporting requirements. Alaska Plan rate-of-return recipients must file annual FCC Form 481s and must also certify and report certain data regarding the availability of backhaul and certify compliance with the relevant public interest obligations and their adopted performance plan. They must also submit fiber network maps and microwave network maps.
114. Alaska Plan rate-of-return recipients are also required to submit certain geocoded location data for the locations where they deploy new service. The Commission expects such information will be submitted on a rolling basis, but must be submitted by no later than March 1, 2018 and then March 1 following each support year. Alaska Plan rate-of-return recipients must also certify that they have met their five-year and 10-year service milestones. Finally, Alaska Plan recipients are required to comply with all other existing high-cost reporting and oversight mechanisms, unless otherwise modified by the Order.
115. Alaska Plan rate-of-return recipients will only be able to count toward new deployment obligations locations in areas that are unserved by qualifying unsubsidized competitors. The Commission will rely on Form 477 data to preliminarily identify areas that are served by competitors. A challenge process will be held where competitors, which carry the burden of persuasion, must certify that they offer qualifying voice and broadband services to 85 percent of the locations in the relevant census blocks, accompanied by evidence. The incumbent and other interested parties will then be able to contest the showing made by the competitor. The Wireline Competition Bureau will make a final determination of which census blocks are competitively served, weighing all of the evidence in the record.
116. Each competitive ETC that participates in the Alaska Plan must identify in its performance plan: (1) the types of middle mile used on that carrier's network; (2) the level of technology (2G, 3G, 4G LTE, etc.) that carrier provides service at for each type of middle mile used; (3) the delineated eligible populations served at each technology level by each type of middle mile as they stand currently and at years five and 10 of the support term; and 4) the minimum download and upload speeds at each technology level by each type of middle mile as they stand currently and at years five and 10 of the support term. Accordingly, each performance plan must specify the level of data service by each type of middle mile on a per person basis that will be offered by the five-year and 10-year milestones the Commission adopted. The proposed performance plans must reflect any improvements to service, through improved middle mile, improved technology, or both. Alaska Plan participants must offer service meeting the milestones they commit to in their adopted service plans. The Wireless Telecommunications Bureau may require additional information, including during the Bureau's review of the proposed performance plans, from individual participants that it deems necessary to establish clear standards
117. Carriers electing to participate will be required to submit a letter from an officer of the company certifying that they will comply with the required public interest obligations and performance obligations set forth in their approved performance plan. Competitive ETCs participating in the Alaska Plan will be given a 10-year term of support and will be required to offer mobile service consistent with the public interest obligations set forth in this Order. Alaska Plan participants that fail to meet their service milestones will be subject to certain non-compliance measures, including support reductions and reporting. To monitor Alaska Plan recipients' use of support to ensure it is used for its intended purpose, the Commission has imposed several reporting requirements. Alaska Plan recipients must file annual FCC Form 481s and must also certify and report certain data regarding the availability of backhaul and certify compliance with the relevant public interest obligations and their adopted performance plans. Alaska Plan recipients must also submit fiber network maps and microwave network maps. Alaska Plan recipients must certify that they have met their five-year and ten-year service milestones, including any obligations pursuant to revised approved performance plans, and that they have met the requisite public interest obligations contained in this Order. Additionally, for mobile carriers receiving more than $5 million annually in support, these certifications must be accompanied by data received or used from drive tests analyzing network coverage for mobile service covering the population for which support was received and showing mobile transmissions to and from the carrier's network meeting or exceeding the minimum expected download and upload speeds delineated in the approved performance plans. The Commission expects such information will be submitted no later than March 1, 2022, and March 1, 2027.
118. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. The Commission has considered all of these factors subsequent to receiving substantive comments from the public and potentially affected entities. The Commission has considered the economic impact on small entities, as identified in comments filed in response to the
119. The Commission is providing small Alaskan rate-of-return carriers with the certainty they need to invest in voice and broadband-capable networks by offering 10 years of adjusted 2011 frozen support. Recognizing the unique conditions and challenges they face, the Commission is giving them the flexibility to submit performance plans where they set the number of locations that will be upgraded in their service area and the minimum speeds they commit to serve. If the Wireline Competition Bureau approves the plan, they have the opportunity to elect to receive Alaska Plan support or instead they can elect model-based support or choose to remain on the reformed legacy support mechanisms. The Commission also adopted two service milestones—one halfway through the support term and the other at the end of the support term—to give more flexibility to Alaska Plan recipients to account for the fact that they have a shortened construction season and face other challenges in building infrastructure that are unique to Alaska.
120. The Commission also takes steps to prohibit Alaska Plan rate-of-return recipients from using Alaska Plan support to upgrade or deploy new broadband in areas that are served by a qualifying unsubsidized competitor. However, the Commission removes from eligibility only those census blocks where an unsubsidized competitor offers service to at least 85 percent of their locations.
121. The Commission notes that the reporting requirements they adopt for Alaskan rate-of-return carriers are tailored to ensuring that Alaska Plan support is used for its intended purpose and so that the Commission can monitor the progress of recipients in meeting their service milestones. The Commission finds that the importance of monitoring the use of the public's funds outweighs the burden of filing the required information on Alaska Plan recipients, particularly because much of the information that the Commission requires they report is information they expect they will already be collecting to ensure they comply with the terms and conditions of Alaska Plan support and they will be able to submit their location data on a rolling basis to help minimize the burden of uploading a large number of locations at once.
122. The Commission is additionally providing small competitive ETCs serving remote Alaska with the certainty they need to invest in mobile service to remote areas by offering 10 years of adjusted December 2014 frozen support. Recognizing the unique conditions and challenges they face, the Commission is giving them the flexibility to submit performance plans where they set the number of the population that will be upgraded in their service area, the middle mile technology they commit to use, and minimum speeds at which they commit to offer service. If the Wireless Telecommunications Bureau approves the plan, they have the opportunity to elect to receive Alaska Plan support or have their support phase down over a three year term. The Commission also adopted two service milestones—one halfway through the support term and the other at the end of the support term—to give more flexibility to Alaska Plan recipients to account for the fact that they have a shortened construction season and face other challenges in building infrastructure that are unique to Alaska.
123. The Commission removes from eligibility for support those census blocks where there is 4G LTE service being provided that is either unsubsidized or subject to a phase down of support.
124. The Commission notes that the reporting requirements they adopt for competitive ETCs serving remote Alaska are tailored to ensuring that Alaska Plan support is used for its intended purpose and so that the Commission can monitor the progress of recipients in meeting their service milestones. The Commission finds that the importance of monitoring the use of the public's
125.
126. Accordingly,
127.
128.
Communications common carriers, Health facilities, Infants and children, Internet, Libraries, Reporting and recordkeeping requirements, Schools, Telecommunications, Telephone.
Communications common carriers, Reporting and recordkeeping requirements, Telephone.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 54 and 69 as follows:
47 U.S.C. 151, 154(i), 155, 201, 205, 214, 219, 220, 254, 303(r), 403, and 1302 unless otherwise noted.
(a)
(1) Support as described in paragraph (c) of this section or
(2) $3,000 annually for each line for which the carrier is receiving support as of the effective date of this rule.
(b)
(c)
(1) One-twelfth (1/12) of the amount of Interstate Common Line Support disbursed to that carrier for 2011, less any reduction made to that carrier's support in 2012 pursuant to the corporate operations expense limit in effect in 2012, and without regard to prior period adjustments related to years other than 2011 and as determined by USAC on January 31, 2012; plus
(2) One-twelfth (1/12) of the total expense adjustment (high cost loop support) disbursed to that carrier for 2011, without regard to prior period adjustments related to years other than 2011 and as determined by USAC on January 31, 2012.
(d)
(c) Alaskan rate-of-return carriers receiving support from the Alaska Plan pursuant to § 54.306 are exempt from paragraph (a) of this section and are instead required to offer voice and broadband service with latency suitable for real-time applications, including Voice over Internet Protocol, and usage capacity that is reasonably comparable to comparable offerings in urban areas, at rates that are reasonably comparable to rates for comparable offerings in urban areas, subject to any limitations in access to backhaul as described in § 54.313(g). Alaska Plan recipients' specific broadband deployment and speed obligations shall be governed by the terms of their approved performance plans as described in § 54.306(b). Alaska Plan recipients must also comply with paragraph (b) of this section.
(d) Mobile carriers that are receiving support from the Alaska Plan pursuant to § 54.317(e) shall certify in their annual compliance filings that their rates are reasonably comparable to rates for comparable offerings in urban areas. The mobile carrier must also demonstrate compliance at the end of the five-year milestone and 10-year milestone and may do this by showing that its required stand-alone voice plan, and one service plan that offers
(1) Substantially similar to a service plan offered by at least one mobile wireless service provider in the cellular market area (CMA) for Anchorage, Alaska, and
(2) Offered for the same or a lower rate than the matching plan in the CMA for Anchorage.
(f) * * *
(1) * * *
(i) A certification that it is taking reasonable steps to provide upon reasonable request broadband service at actual speeds of at least 10 Mbps downstream/1 Mbps upstream, with latency suitable for real-time applications, including Voice over Internet Protocol, and usage capacity that is reasonably comparable to comparable offerings in urban areas as determined in an annual survey, and that requests for such service are met within a reasonable amount of time; or if the rate-of-return carrier is receiving Alaska Plan support pursuant to § 54.306, a certification that it is offering broadband service with latency suitable for real-time applications, including Voice over Internet Protocol, and usage capacity that is reasonably comparable to comparable offerings in urban areas, and at speeds committed to in its approved performance plan to the locations it has reported pursuant to § 54.316(a), subject to any limitations due to the availability of backhaul as specified in paragraph (g) of this section.
(3) For rate-of-return carriers participating in the Alaska Plan, funding recipients must certify as to whether any terrestrial backhaul or other satellite backhaul became commercially available in the previous calendar year in areas that were previously served exclusively by performance-limiting satellite backhaul. To the extent that such new terrestrial backhaul facilities are constructed, or other satellite backhaul become commercially available, or existing facilities improve sufficiently to meet the relevant speed, latency and capacity requirements then in effect for broadband service supported by the Alaska Plan, the funding recipient must provide a description of the backhaul technology, the date at which that backhaul was made commercially available to the carrier, and the number of locations that are newly served by the new terrestrial backhaul or other satellite backhaul. Within twelve months of the new backhaul facilities becoming commercially available, funding recipients must certify that they are offering broadband service with latency suitable for real-time applications, including Voice over Internet Protocol, and usage capacity that is reasonably comparable to comparable offerings in urban areas. Funding recipients' minimum speed deployment obligations will be reassessed as specified by the Commission.
(g)
(l) In addition to the information and certifications in paragraph (a) of this section, any competitive eligible telecommunications carrier participating in the Alaska Plan must provide the following:
(1) Funding recipients that have identified in their approved performance plans that they rely exclusively on satellite backhaul for a certain portion of the population in their service area must certify as to whether any terrestrial backhaul or other satellite backhaul became commercially available in the previous calendar year in areas that were previously served exclusively by satellite backhaul. To the extent that new terrestrial backhaul facilities are constructed or other satellite backhaul become commercially available, the funding recipient must:
(i) Provide a description of the backhaul technology;
(ii) Provide the date on which that backhaul was made commercially available to the carrier;
(iii) Provide the number of the population within their service area that are served by the newly available backhaul option; and
(iv) To the extent the funding recipient has not already committed to providing 4G LTE at 10/1 Mbps to the population served by the newly available backhaul by the end of the plan term, submit a revised performance commitment factoring in the availability of the new backhaul option no later than the due date of the Form 481 in which they have certified that such backhaul became commercially available.
(2) [Reserved]
(a) * * *
(1) Recipients of high-cost support with defined broadband deployment obligations pursuant to § 54.308(a), 54.308(c), or § 54.310(c) shall provide to the Administrator on a recurring basis information regarding the locations to which the eligible telecommunications carrier is offering broadband service in satisfaction of its public interest obligations, as defined in either § 54.308 or § 54.309.
(5) Recipients subject to the requirements of § 54.308(c) shall report the number of newly deployed and upgraded locations and locational information, including geocodes, where they are offering service providing speeds they committed to in their adopted performance plans pursuant to § 54.306(b).
(6) Recipients subject to the requirements of § 54.308(c) or § 54.317(e) shall submit fiber network maps or microwave network maps covering eligible areas. At the end of any calendar year for which middle-mile facilities were deployed, these recipients shall also submit updated maps showing middle-mile facilities that are or will be used to support their services in eligible areas.
(b) * * *
(6) A rate-of-return carrier authorized to receive Alaska Plan support pursuant to § 54.306 shall provide:
(i) No later than March 1, 2022 a certification that it fulfilled the deployment obligations and is offering service meeting the requisite public interest obligations as specified in § 54.308(c) to the required number of locations as of December 31, 2021.
(ii) No later than March 1, 2027 a certification that it fulfilled the deployment obligations and is offering service meeting the requisite public interest obligations as specified in § 54.308(c) to the required number of locations as of December 31, 2026.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(1) From January 1, 2017, to December 31, 2017, each such competitive eligible telecommunications carrier shall receive two-thirds of the monthly support amount the carrier received for December 2014 for the relevant study area.
(2) From January 1, 2018, to December 31, 2018, each such competitive eligible telecommunications carrier shall receive one-third of the monthly support amount the carrier received for December 2014 for the relevant study area.
(3) Beginning January 1, 2019, no such competitive eligible telecommunications carrier shall receive universal service support for the relevant study area pursuant to this section or § 54.307.
(h)
(d) * * *
(1)
(i)
(ii)
(iii)
(iv)
(A) USAC will withhold 50 percent of the eligible telecommunications carrier's monthly support for that state, and the eligible telecommunications carrier will be required to file quarterly reports. As with the other tiers, as the eligible telecommunications carrier reports that it has lessened the extent of its non-compliance, and the Wireline Competition Bureau or Wireless Telecommunications Bureau issues a letter to that effect, it will move down the tiers until it reaches Tier 1 (or no longer is out of compliance with the relevant interim milestone).
(B) If after having 50 percent of its support withheld for six months the eligible telecommunications carrier has not reported that it is eligible for Tier 3 status (or one of the other lower tiers), USAC will withhold 100 percent of the eligible telecommunications carrier's monthly support and will commence a recovery action for a percentage of support that is equal to the eligible telecommunications carrier's compliance gap plus 10 percent of the ETC's support that has been disbursed to that date.
(v) If at any point during the support term, the eligible telecommunications carrier reports that it is eligible for Tier 1 status, it will have its support fully restored, USAC will repay any funds that were recovered or withheld, and it will move to Tier 1 status.
(2)
(3)
Any competitive eligible telecommunications carrier authorized to receive Alaska Plan support pursuant to § 54.317 shall provide:
(a) No later than 60 days after the end of each participating carrier's first five-year term of support, a certification that it has met the obligations contained in the performance plan approved by the Wireless Telecommunications Bureau, including any obligations pursuant to a revised approved performance plan and that it has met the requisite public interest obligations contained in the Alaska Plan Order. For Alaska Plan participants receiving more than $5 million annually in support, this certification shall be accompanied by data received or used from drive tests analyzing network coverage for mobile service covering the population for which support was received and showing mobile transmissions to and from the carrier's network meeting or exceeding the minimum expected download and upload speeds delineated in the approved performance plan.
(b) No later than 60 days after the end of each participating carrier's second five-year term of support, a certification that it has met the obligations contained in the performance plan approved by the Wireless Telecommunications Bureau, including any obligations pursuant to a revised approved performance plan, and that it has met the requisite public interest obligations contained in the Alaska Plan Order. For Alaska Plan participants receiving more than $5 million annually in support, this certification shall be accompanied by data received or used from drive tests analyzing network coverage for mobile service covering the population for which support was received and showing mobile transmissions to and from the carrier's network meeting or exceeding the minimum expected download and upload speeds delineated in the approved performance plan.
47 U.S.C. 154, 201, 202, 203, 205, 218, 220, 254, 403.
(s) End User Common Line Charges for incumbent local exchange carriers not subject to price cap regulation that elect model-based support pursuant to § 54.311 of this chapter or Alaska Plan support pursuant to § 54.306 of this chapter are limited as follows:
(1) The maximum charge a non-price cap local exchange carrier that elects model-based support pursuant to § 54.311 of this chapter or Alaska Plan support pursuant to § 54.306 of this chapter may assess for each residential or single-line business local exchange service subscriber line is the rate in effect on the last day of the month preceding the month for which model-based support or Alaska Plan support, as applicable, is first provided.
(2) The maximum charge a non-price cap local exchange carrier that elects model-based support pursuant to § 54.311 of this chapter or Alaska Plan support pursuant to § 54.306 of this chapter may assess for each multi-line business local exchange service subscriber line is the rate in effect on the last day of the month preceding the month for which model-based support or Alaska Plan support, as applicable, is first provided.
(f) The maximum special access surcharge a non-price cap local exchange carrier that elects model-based support pursuant to § 54.311 of this chapter or Alaska Plan support pursuant to § 54.306 of this chapter may assess is the rate in effect on the last day of the month preceding the month for which model-based support or Alaska Plan support, as applicable, is first provided.
(b) The maximum charge a non-price cap local exchange carrier that elects model-based support pursuant to § 54.311 of this chapter or Alaska Plan support pursuant to § 54.306 of this chapter may assess is the rate in effect on the last day of the month preceding the month for which model-based support or Alaska Plan support, as applicable, is first provided.
(c) For carriers not electing model-based support pursuant to § 54.311 of this chapter or Alaska Plan support pursuant to § 54.306 of this chapter, the single-line rate or charge shall be computed by dividing one-twelfth of the projected annual revenue requirement for the Consumer Broadband-Only Loop category (net of the projected annual Connect America Fund Broadband Loop Support attributable to consumer broadband-only loops) by the projected average number of consumer broadband-only service lines in use during such annual period.
(d) The maximum monthly per line charge for each Consumer Broadband-Only Loop provided by a non-price cap local exchange carrier that elects model-based support pursuant to § 54.311 of this chapter or Alaska Plan support pursuant to § 54.306 of this chapter shall be $42.
In rule document 2016-23190 appearing on pages 68874-68921 in the issue of Tuesday, October 4, 2016, make the following correction:
On page 68893, beginning in the first column, in the ninth line, amendatory instruction 7. should read as follows.
7. Amend § 32.25 by:
a. Revising paragraphs A, B, and C under the entry Alamosa National Wildlife Refuge;
b. Adding, in alphabetical order, an entry for Baca National Wildlife Refuge; and
c. Revising paragraphs A, B, and C under the entry Monte Vista National Refuge.
The addition and revisions read as follows:
A. Migratory Game Bird Hunting. We allow hunting of geese, ducks, coots, snipe, Eurasian collared-doves, and mourning doves on designated areas of the refuge in accordance with State and Federal regulations, and subject to the following conditions:
1. We allow Eurasian collared-dove hunting only during the mourning dove season.
2. You may possess only approved nontoxic shot for hunting (see § 32.2(k)).
3. The only acceptable methods of take are shotguns, hand-held bows, and hawking/falconry.
4. Persons possessing, transporting, or carrying firearms on national wildlife refuges must comply with all provisions of State and local law. Persons may only use (discharge) firearms in accordance with refuge regulations (see § 27.42 of this chapter and specific refuge regulations in this part 32).
B. Upland Game Hunting. We allow hunting of cottontail rabbit, and black-tailed and whitetailed jackrabbit, on designated areas of the refuge in accordance with State regulations and subject to the following conditions:
1. Conditions A2, A3 and A4 apply.
C. Big Game Hunting. We allow hunting of elk on designated areas of the refuge in accordance with State regulations and subject to the following conditions:
1. Condition A4 applies.
2. You must possess a valid State license and a refuge-specific permit from the State, or a valid State license issued specifically for the refuge, to hunt elk. State license selection will be made via the Colorado Parks and Wildlife hunt selection process.
A. Migratory Game Bird Hunting. We allow hunting of Eurasian collared-doves and mourning doves only in designated areas of the refuge in accordance with State and Federal regulations, and subject to the following conditions:
1. We allow Eurasian collared-dove hunting only during the mourning dove season.
2. You may possess only approved nontoxic shot for hunting (see § 32.2(k)).
3. The only acceptable methods of take are shotguns, hand-held bows, and hawking/falconry.
4. Persons possessing, transporting, or carrying firearms on national wildlife refuges must comply with all provisions of State and local law. Persons may only use (discharge) firearms in accordance with refuge regulations (see § 27.42 of this chapter and specific refuge regulations in this part 32).
B. Upland Game Hunting. We allow hunting of cottontail rabbit, and black-tailed and whitetailed jackrabbit, on designated areas of the refuge in accordance with State regulations and subject to the following conditions:
1. Conditions A2 and A4 apply.
2. We prohibit handguns for hunting.
3. Shotguns, rifles firing rim-fire cartridges less than .23 caliber, hand-held bows, pellet guns, slingshots, and hawking/falconry are the only acceptable methods of take.
C. Big Game Hunting. We allow hunting of elk on designated areas of the refuge in accordance with State regulations and subject to the following conditions:
1. Condition A4 applies.
2. You must possess a valid State license and a refuge-specific permit from the State, or a valid State license issued specifically for the refuge, to hunt elk. State license selection will be made via the Colorado Parks and Wildlife hunt selection process.
D. Sport Fishing. [Reserved]
A. Migratory Game Bird Hunting. We allow hunting of geese, ducks, coots, snipe, Eurasian collared-doves, and mourning doves on designated areas of the refuge in accordance with State and Federal regulations, and subject to the following conditions:
1. We allow Eurasian collared-dove hunting only during the mourning dove season.
2. You may possess only approved nontoxic shot for hunting (see § 32.2(k)).
3. The only acceptable methods of take are shotguns, hand-held bows, and hawking/falconry.
4. Persons possessing, transporting, or carrying firearms on national wildlife refuges must comply with all provisions of State and local law. Persons may only use (discharge) firearms in accordance with refuge regulations (see § 27.42 of this chapter and specific refuge regulations in this part 32).
B. Upland Game Hunting. We allow hunting of cottontail rabbit, and black-tailed and whitetailed jackrabbit, on designated areas of the refuge in accordance with State regulations and subject to the following conditions:
1. Conditions A2, A3, and A4 apply.
C. Big Game Hunting. We allow hunting of elk on designated areas of the refuge in accordance with State regulations and subject to the following conditions:
1. Condition A4 applies.
2. You must possess a valid State license and a refuge-specific permit from the State, or a valid State license issued specifically for the refuge, to hunt elk. State license selection will be made via the Colorado Parks and Wildlife hunt selection process.
3. During firearms elk seasons, hunters must follow State law for use of hunter orange.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; fishery reopening.
NMFS is temporarily reopening the U.S. pelagic longline fishery for bigeye tuna for vessels over 24 meters in overall length in the eastern Pacific Ocean (EPO) because part of the 500 metric ton (mt) catch limit remains available after NMFS closed the fishery on July 25, 2016. This action will allow U.S. vessels to access the remainder of the catch limit, which was established by the Inter-American Tropical Tuna Commission (IATTC) in Resolution C-13-01.
The reopening is effective October 4, 2016 until the effective date
Taylor Debevec, NMFS West Coast Region, 562-980-4066.
The United States is a member of the IATTC, which was established under the Convention for the Establishment of an Inter-American Tropical Tuna Commission signed in 1949 (Convention). The Convention provides an international agreement to ensure the effective international conservation and management of highly migratory species of fish in the IATTC Convention Area. The IATTC Convention Area, as amended by the Antigua Convention, includes the waters of the EPO bounded by the coast of the Americas, the 50° N. and 50° S. parallels, and the 150° W. meridian.
Pelagic longline fishing in the EPO is managed, in part, under the Tuna Conventions Act as amended (Act), 16 U.S.C. 951-962. Under the Act, NMFS must publish regulations to carry out recommendations of the IATTC that have been approved by the Department of State (DOS). In 2013, the IATTC adopted Resolution C-13-01, which establishes an annual catch limit of bigeye tuna for longline vessels over 24 meters. For calendar years 2014, 2015, and 2016, the catch of bigeye tuna by longline gear in the IATTC Convention Area by fishing vessels of the United States that are over 24 meters in overall length is limited to 500 mt per year. With the approval of the DOS, NMFS implemented this catch limit by notice-and-comment rulemaking under the Act (79 FR 19487, April 9, 2014, and codified at 50 CFR 300.25).
NMFS, through monitoring retained catches of bigeye tuna noted in logbook data submitted by vessel captains and other available information from the longline fisheries in the IATTC Convention Area, determined that the 2016 catch limit would be reached by July 25, 2016, and published a notice in the
NMFS has determined there is good cause to waive prior notice and opportunity for public comment pursuant to 5 U.S.C. 553(b)(B). Compliance with the notice and comment requirement would be impracticable and contrary to the public interest because this action is simply a correction to a premature closure and is of benefit to fishermen since they cannot currently access the fishery. Moreover, NMFS previously solicited and considered public comments on the rule that established the catch limit (79 FR 19487, April 9, 2014). For the same reasons, NMFS has also determined there is good cause to waive the requirement for a 30-day delay in effectiveness under 5 U.S.C. 553(d)(3).
This action is required by § 300.25(b) and is exempt from review under Executive Order 12866.
16 U.S.C. 951
Nuclear Regulatory Commission.
Proposed rule.
The U.S. Nuclear Regulatory Commission (NRC) is proposing to amend its spent fuel storage regulations by revising the NAC International (NAC), MAGNASTOR® Cask System listing within the “List of approved spent fuel storage casks” to include Amendment No. 6 to Certificate of Compliance (CoC) No. 1031. Amendment No. 6 revises NAC-MAGNASTOR technical specifications (TSs) to align with the NAC Multi-Purpose Canister (MPC) and NAC Universal MPC System TSs. The CoC No. 1031 TSs require that a program be established and maintained for loading, unloading, and preparing fuel for storage without any indication of duration for the program. Amendment No. 6 limits maintenance of this program until all spent fuel is removed from the spent fuel pool and transport operations are completed. Related training and radiation protection program requirements are modified accordingly. Additionally, Amendment No. 6 incorporates the change to Limiting Condition for Operation 3.1.1 previously approved by the NRC in CoC No. 1031 Amendment No. 4.
Submit comments by November 7, 2016. Comments received after this date will be considered if it is practical to do so, but the NRC staff is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
•
•
•
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Keith McDaniel, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-5252 or email:
Please refer to Docket ID NRC-2016-0137 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:
•
•
•
Please include Docket ID NRC-2016-0137 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.
This proposed rule is limited to the changes contained in Amendment No. 6 to CoC No. 1031 and does not include other aspects of the NAC MAGNASTOR® Cask System design. Because the NRC considers this action noncontroversial and routine, the NRC is publishing this proposed rule concurrently with a direct final rule in the Rules and Regulations section of this issue of the
A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:
(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:
(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;
(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or
(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.
(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.
(3) The comment causes the NRC staff to make a change (other than editorial) to the rule, CoC, or TSs.
For additional procedural information and the regulatory analysis, see the direct final rule published in the Rules and Regulations section of this issue of the
Section 218(a) of the Nuclear Waste Policy Act (NWPA) of 1982, as amended, requires that “the Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[the Commission] shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”
To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule which added a new subpart K in part 72 of title 10 of the
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, well-organized manner that also follows other best practices appropriate to the subject or field and the intended audience. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883). The NRC requests comment on the proposed rule with respect to clarity and effectiveness of the language used.
The documents identified in the following table are available to interested persons as indicated.
The NRC may post materials related to this document, including public comments, on the Federal rulemaking Web site at
Administrative practice and procedure, Criminal penalties, Hazardous waste, Indians, Intergovernmental relations, Manpower training programs, Nuclear energy, Nuclear materials, Occupational safety and health, Penalties, Radiation protection, Reporting and recordkeeping requirements, Security measures, Spent fuel, Whistleblowing.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is proposing to adopt the following amendments to 10 CFR part 72:
Atomic Energy Act of 1954, secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182,
For the Nuclear Regulatory Commission.
Federal Election Commission.
Rulemaking Petition: Notice of availability.
On June 15, 2016, the Federal Election Commission received a Petition for Rulemaking asking the Commission to revise existing rules regarding the use of federal funds to pay for certain activities of state, district, or local committees of a political party. The Commission seeks comments on this petition.
Comments must be submitted on or before January 30, 2017.
All comments must be in writing. Commenters are encouraged to submit comments electronically via the Commission's Web site at
Each commenter must provide, at a minimum, his or her first name, last name, city, state, and zip code. All properly submitted comments, including attachments, will become part of the public record, and the Commission will make comments available for public viewing on the Commission's Web site and in the Commission's Public Records room. Accordingly, commenters should not provide in their comments any information that they do not wish to make public, such as a home street address, personal email address, date of birth, phone number, social security number, or driver's license number, or any information that is restricted from disclosure, such as trade secrets or commercial or financial information that is privileged or confidential.
Mr. Neven F. Stipanovic, Acting Assistant General Counsel, or Mr. Joseph P. Wenzinger, Attorney, Office of General Counsel, 999 E Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
On June 15, 2016, the Federal Election Commission received a Petition for Rulemaking from the Minnesota Democratic-Farmer-Labor Party and its Chair, Ken Martin, requesting that the Commission amend several regulations applicable to political parties.
First, the Federal Election Campaign Act, 52 U.S.C. 30101-46 (the “Act”), as amended by the Bipartisan Campaign Reform Act (“BCRA”), and Commission regulations provide that a state, district, or local committee of a political party must pay for “Federal election activity” with either entirely federal funds or, in other instances, a mix of federal funds and “Levin funds.”
Second, Commission regulations provide that political parties must use a federal account to pay the salary, wages, and fringe benefits of an employee who spends more than 25 percent of that individual's time on “Federal election activities” or on conduct “in connection with a Federal election.”
Finally, the petitioners ask the Commission to consider additional regulatory modifications listed in Commission Agenda Document No. 15-54-A, a proposed resolution that recommended amending several rules to (1) allow political parties “to discuss issue advertisements with candidates,” “republish parts of candidate materials in party materials,” and “distribute volunteer campaign materials without triggering coordination limits,”
The Commission seeks comments on the petition. The public may inspect the Petition for Rulemaking on the Commission's Web site at
The Commission will not consider the petition's merits until after the comment period closes. If the Commission decides that the petition has merit, it may begin a rulemaking proceeding. The Commission will announce any action that it takes in the
On behalf of the Commission,
Federal Election Commission.
Rulemaking Petition: Notice of availability.
The Federal Election Commission has received a Petition for Rulemaking that asks the Commission to amend its regulations to implement amendments to the Federal Election Campaign Act made by the Consolidated and Further Continuing Appropriations Act, 2015, which established certain new accounts for national party committees. The petition also asks the Commission to amend its regulations regarding convention committees. The Commission seeks comments on this petition.
Comments must be submitted on or before January 30, 2017.
All comments must be in writing. Commenters are encouraged to submit comments electronically via the Commission's Web site at
Each commenter must provide, at a minimum, his or her first name, last name, city, state, and zip code. All properly submitted comments, including attachments, will become part of the public record, and the Commission will make comments available for public viewing on the Commission's Web site and in the Commission's Public Records room. Accordingly, commenters should not provide in their comments any information that they do not wish to make public, such as a home street address, personal email address, date of birth, phone number, social security number, or driver's license number, or any information that is restricted from disclosure, such as trade secrets or commercial or financial information that is privileged or confidential.
Mr. Neven F. Stipanovic, Acting Assistant General Counsel, or Mr. Tony Buckley or Ms. Esther D. Gyory, Attorneys, Office of General Counsel, 999 E Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
On January 8, 2016, the Federal Election Commission received a Petition for Rulemaking from the Perkins Coie LLP Political Law Group. The petition asks the Commission to adopt new regulations, and to revise its current regulations, to implement amendments to the Federal Election Campaign Act, 52 U.S.C. 30101-46 (“FECA”), made by the Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. 113-235, 128 Stat. 2130, 2772 (2014) (the “Appropriations Act”). The petition also asks the Commission to adopt new regulations, and to amend its current regulations, regarding convention committees.
The Appropriations Act amended FECA by establishing separate limits on contributions to three types of segregated accounts of national party committees (collectively “party segregated accounts”). The party segregated accounts are for expenses incurred with respect to (1) presidential nominating conventions; (2) party headquarters buildings; and (3) election recounts or contests and other legal proceedings. 52 U.S.C. 30116(a)(9). The Appropriations Act permits a national party committee to maintain the party segregated accounts in addition to any other federal accounts that the committee may lawfully maintain.
Under the Appropriations Act, a national party committee may use its presidential nominating convention account “solely to defray expenses incurred with respect to a presidential nominating convention (including the payment of deposits) or to repay loans the proceeds of which were used to defray such expenses, except that the aggregate amount of expenditures the national committee of a political party may make from such account may not exceed $20,000,000 with respect to any single convention.” 52 U.S.C. 30116(a)(9)(A). A committee may use its party headquarters building account “solely to defray expenses incurred with respect to the construction, purchase, renovation, operation, and furnishing of one or more headquarters buildings of the party or to repay loans the proceeds of which were used to defray such expenses, or otherwise to restore funds used to defray such expenses.” 52 U.S.C. 30116(a)(9)(B). Finally, a national party committee may use its election recounts or contests and other legal proceedings account to “defray expenses incurred with respect to the preparation for and the conduct of election recounts and contests and other legal proceedings.” 52 U.S.C. 30116(a)(9)(C). The petition asks the Commission to adopt a “new regulatory framework” for each type of party segregated account and to amend current regulations, or adopt new regulations, that would apply to all such accounts.
The petition also addresses convention committees. Until recently, national party committees were entitled to receive public funds to defray the costs of their presidential nominating conventions.
The Commission seeks comments on the petition. The public may inspect the petition on the Commission's Web site at
The Commission will not consider the petition's merits until after the comment period closes. If the Commission decides that the petition has merit, it may begin a rulemaking proceeding. The Commission will announce any action that it takes in the
On behalf of the Commission.
U.S. Small Business Administration.
Proposed rule.
The U.S. Small Business Administration (SBA) is proposing to amend the rules of practice of its Office of Hearings and Appeals (OHA) to implement Section 869 of the National Defense Authorization Act for Fiscal Year 2016. This legislation authorizes OHA to decide Petitions for Reconsideration of Size Standards. This rule also proposes to revise the rules of practice for OHA appeals of agency employee grievances.
Comments must be received on or before December 6, 2016.
You may submit comments, identified by RIN: 3245-AG82 by any of the following methods:
•
•
SBA will post all comments on
Linda (Lin) DiGiandomenico, Attorney Advisor, at (202) 401-8206 or
This proposed rule would amend the rules of practice for the SBA's Office of Hearings and Appeals (OHA) in order to implement section 869(b) of the National Defense Authorization Act for Fiscal Year 2016, Public Law 114-92, 129 Stat. 726, November 25, 2015 (NDAA 2016). This legislation added a provision to section 3(a) of the Small Business Act to authorize OHA to hear and decide Petitions for Reconsideration of Size Standards (Size Standard Petitions or Petitions). A Size Standard Petition may be filed at OHA after SBA publishes a final rule in the
This proposed rule also would revise the rules of practice for OHA appeals of agency employee grievances, in concert with SBA's revisions of its Standard Operating Procedure (SOP) 37 71, The Employee Dispute Resolution Process.
SBA proposes to amend § 121.102, the rules for establishing size standards, to provide for Petitions for Reconsideration of Size Standards (Size Standard Petitions or Petitions), pursuant to 15 U.S.C. 632(a)(9). New paragraph (e) would require SBA to include instructions for filing a Size Standard Petition in any final rule revising, modifying, or establishing a size standard. The rule would inform the public that, as stated in the NDAA 2016, any Petition for reconsideration of a size standard must be filed no later than 30 days after the final rule is published. New paragraph (f) would require SBA to publish a notice in the
In § 134.101, SBA proposes to revise the definition for “AA/OHA” to include the new statutory title “Chief Hearing Officer”. SBA also proposes to add definitions for “Administrative Judge” (including the new statutory title “Hearing Officer”), “Petitioner” (as the party who initially files a petition), and “Size Standard Petition” (citing 15 U.S.C. 632(a)(9) and subpart I of part 134).
Section 134.102 lists the cases in which OHA has authority to conduct proceedings. In paragraph (r), on Employee Disputes, SBA proposes to remove the reference to “Appropriate Management Official” (AMO), a term being eliminated from the EDRP. Paragraph (t) permits the Administrator to refer matters to OHA through a SOP, Directive, Procedural Notice, or individual request. Section 869(a)(3) of the NDAA 2016, repealed this regulatory provision. As a result, SBA proposes to amend paragraph (t) by removing the current text and adding in its place, the authority for OHA to accept Size Standard Petitions.
Section 134.201 would be amended to redesignate paragraph (7) as paragraph (8) and to add a new paragraph (7), which would state that the rules of practice governing Size Standard Petitions cases are at new subpart I of part 134.
Section 134.227 would be amended to list Size Standard Petitions as a type of case in which OHA would issue a final decision. To effect this change, the rule proposes to redesignate paragraph (b)(4) as paragraph (b)(5) and adding a new paragraph (b)(4).
The rules of practice governing Employee Dispute appeals would be revised to correspond to revisions being made to Standard Operating Procedure (SOP) 37 71.
Section 134.801 lists the rules in subparts A and B that also apply to Employee Dispute appeals. SBA proposes to remove paragraph (b)(11) from the list because this rule proposes to include all rules of practice governing the review of initial decisions in § 134.809.
Section 134.803 governs the commencement of appeals. SBA proposes to revise the section heading and paragraphs (a) and (b) to reflect the elimination of the term “AMO” from the EDRP, and to shorten the Employee's deadline for filing the appeal in the event the Agency declines to issue an appealable “Step Two” decision. The current rule requires the employee to file an appeal “no sooner than 16 days and no later than 55 days from the date on which the Employee filed the original Statement of Dispute.” The proposed rule would revise that time to “no later than 15 calendar days from the date the Step Two decision was due.” This change would simplify the Employee's deadline for filing an appeal.
SBA proposes to revise § 134.804, which sets out the requirements for filing an appeal petition, including the contents of the petition, the supporting information to be submitted with it, as well as the requirements for service of the petition. The rule proposes to amend paragraphs (a)(1) through (a)(3) and paragraph (b) to conform the descriptions of the required information to the terms used in the EDRP. Specifically, the term “Statement of Dispute” would be replaced with “SBA Dispute Form 2457”; and references to “AMO's decision” and “AMO Official” would be replaced with “Step One decision” and/or “Step Two decision” or “Step Two Official” as applicable. The rule would also remove paragraph (a)(6), which currently requires the Employee to provide fax numbers, home mailing addresses and other contact information. In addition, because SBA Form 2457 contains a certificate of service, the rule proposes to remove paragraph (c), which requires employees to file a separate certificate of service. Revised § 134.805(d) would provide that email, rather than U.S. Mail, is the default method by which OHA serves orders and the decision.
Section 134.807(a) currently requires SBA to file the “Dispute File.” In place of that, the proposed rule would require SBA to file “any documentation, not already filed by the Employee, that it wishes OHA to consider,” thus reducing wasteful duplication of paper. In paragraph (b), SBA proposes to shorten the deadline for filing the response to an Employee's appeal from “no later than 15 days from the conclusion of mediation or 45 days from the filing of the appeal petition, whichever is later” to “15 calendar days” in place of “15 days” and “45 days.” This change would simplify the deadline for filing a response to an Employee's appeal. Revised paragraph (c) would eliminate the reference to the “Dispute File.”
Section 134.808(a), on the decision, would be revised to update terminology.
Section 134.809 concerns review of OHA's initial decision. The revised rule would allow only certain SBA officials to request a review of OHA's initial decision. The official would be required to request the OHA file within five calendar days after receiving the decision. OHA would have five days to provide copies to both the official and to the Employee, and the official would have 15 calendar days from receipt of the file to state his or her objections to the OHA decision. As before, the Employee does not have the right to request a review of OHA's initial decision.
SBA proposes to add Subpart I setting forth the rules of practice before OHA for Petitions for Reconsideration of Size Standards pursuant to 15 U.S.C. 632(a)(9).
Proposed § 134.901 states that the provisions of subparts A and B also apply to Size Standard Petitions, except where inconsistent with rules set out in subpart I.
As proposed in Section 134.902(a), any person “adversely affected” by a new, revised, or modified size standard would have standing to file a Petition within 30 days from the date of publication of the final rule promulgating that size standard. Paragraph (b) would provide that a business entity is not “adversely affected” unless it conducts business in the industry associated with the size standard being challenged and either it qualified as a small business concern before the size standard was revised or modified, or it would be qualified as a small business concern under the size standard as revised or modified.
Section 134.903(a) would reiterate the statutory deadline for filing a Petition, which is “not later than 30 days after” the final rule is published in the
Section 134.904(a) would require a Petition to identify the challenged size standard or standards and include the following: A copy of the final rule being challenged or an electronic link to the rule; a statement as to why the process used by SBA to revise, modify, or establish the size standard is alleged to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, together with supporting argument; a copy of any comments on the challenged size standard(s) that Petitioner had submitted in response to notice of proposal rulemaking on the size standard being petitioned (or a statement that none were submitted); and basic contact information for Petitioner or its attorney. Section 134.904(b) would permit multiple size standards from the same final rule to be challenged in a single Petition, but the Petitioner must demonstrate standing for each challenged size standard. Section 134.904(c) would require the same formatting standards as are required for size appeals under Section 134.305. Section 134.904(d) would require the Petitioner to serve a copy of the Petition on SBA's Office of Size standards as well as the Office of General Counsel. Section 134.904(e) would require a signed certificate of service similar to that required by 134.204(d) for size appeals.
Section 134.905 would set out OHA's procedures on receipt of a Petition. These include assignment to a Judge, initial review, and issuance of a notice and order setting the deadline for SBA to send the administrative record (typically seven calendar days after issuance of the notice and order) and setting the close of record (typically 45 calendar days from filing).
Section 134.906 would permit interested persons with a direct stake in
Section 134.907 would establish the same filing and service rules as apply to other OHA proceedings.
Section 134.908 would require SBA to submit to OHA a copy of the documentation and analysis supporting the revision, modification, or establishment of the challenged size standard, and would permit the Petitioner and any intervener, on request, to review this information.
Section 134.909 would provide the standard of review, which is whether the process employed by SBA to arrive at the size standard “was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Also, the Petitioner would bear the burden of proof, and OHA would not adjudicate arguments for a different size standard.
Section 134.910 would require OHA to dismiss a Petition if: (i) It does not allege facts that, if proven true, would warrant remand of the size standard; (ii) the Petitioner is not adversely affected by the challenged size standard; (iii) the Petition is untimely, premature, or is not otherwise filed according to the requirements; or (iv) the matter has been decided by or is currently before a court of competent jurisdiction.
Section 134.911 would allow an intervener to file a response to the Petition, presenting argument, before the close of record. SBA also may intervene.
Section 134.912 would not permit discovery, and would permit oral hearings only if the Judge determines that the case cannot be resolved without live testimony and the confrontation of witnesses. These rules are similar to the rules in size appeals.
Under § 134.913, cases would be decided based on the pleadings and the administrative record. The Judge may admit new evidence on motion establishing good cause.
Section 134.914 would require OHA to issue a decision within 45 calendar days after close of record, as practicable. The rule would also establish that the decision is final and will not be reconsidered.
Under § 134.915, if OHA grants a Size Standard Petition, OHA would not assign a size standard to the industry in question. Rather, the case would be remanded to the Office of Size Standards for further analysis. Once remanded, OHA no longer has jurisdiction over the case unless a new Petition is filed as a result of a new final rule.
Section 134.916 would require SBA to rescind the challenged size standard if OHA grants a Petition. The size standard in effect prior to the final rule would be restored until a new final rule is issued. If OHA denied a Petition, the size standard in the final rule would remain.
Section 134.917 would state that because Size Standard Petition proceedings are not required to be conducted by an Administrative Law Judge, attorney's fees are not available under the Equal Access to Justice Act.
Section 134.918 would reiterate the statutory provision in NDAA 2016 that, for purposes of seeking judicial review of a new size standard, the publication of a final rule in the
OMB has determined that this rule does not constitute a “significant regulatory action” under Executive Order 12866. This rule is also not a major rule under the Congressional Review Act, 5 U.S.C. 800. This rule establishes the procedures for Petitions for Reconsideration of Size Standards at SBA's Office of Hearings and Appeals (OHA) and revises procedural rules at OHA for agency employee grievances. As such, the rule has no effect on the amount or dollar value of any Federal contract requirements or of any financial assistance provided through SBA. Therefore, the rule is not likely to have an annual economic effect of $100 million or more, result in a major increase in costs or prices, or have a significant adverse effect on competition or the United States economy. In addition, this rule does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency, materially alter the budgetary impact of entitlements, grants, user fees, loan programs or the rights and obligations of such recipients, nor raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
This action meets applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.
For the purposes of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, SBA has determined that this proposed rule will not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Therefore, SBA determines that this proposed rule does not require consultations with tribal officials or warrant the publication of a Tribal Summary Impact Statement.
This rule does not have Federalism implications as defined in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in the Executive Order. As such it does not warrant the preparation of a Federalism Assessment.
The SBA has determined that this rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. Small entities include small businesses, small not-for-profit organizations, and small governmental jurisdictions. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
This proposed rule would revise the regulations governing cases before SBA's Office of Hearings and Appeals (OHA), SBA's administrative tribunal. These regulations are procedural by nature. Specifically, the proposed rule would establish rules of practice for
The Small Business Size Regulations provide that persons requesting to change existing size standards or to establish new size standards may address these requests to SBA's Office of Size Standards. 13 CFR 121.102(d). Over the past five years, fewer than ten letters concerning size standards have been submitted per year, supporting SBA's belief that this proposed rule will not affect a substantial number of small entities. Further, a business adversely affected by a final rule revising a size standard has always had (and would continue to have) the option of judicial review in Federal court, yet the SBA knows of no such lawsuit ever having been filed.
In addition to establishing rules of practice for Size Standard Petitions, this proposed rule would revise OHA's rules of practice for SBA Employee Disputes. This rulemaking is procedural, would impose no significant additional requirements on small entities, and would have minimal, if any, effect on small entities.
Therefore, the Administrator of SBA certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
Administrative practice and procedure, Government procurement, Government property, Grant programs—business, Individuals with disabilities, Loan programs—business, Small businesses.
Administrative practice and procedure, Claims, Equal access to justice, Lawyers, Organization and functions (Government agencies).
For the reasons stated in the preamble, SBA proposes to amend 13 CFR parts 121 and 134 as follows:
15 U.S.C. 632, 634(b)(6), 662, and 694a(9).
(e) When SBA publishes a final rule in the
(f) Within 14 calendar days after a petition for reconsideration of a size standard is filed, unless it appears OHA will dismiss the petition for reconsideration, SBA will publish a notice in the
(g) Where OHA grants a petition for reconsideration of a size standard that had been revised or modified, SBA will publish a notice in the
5 U.S.C. 504; 15 U.S.C. 632, 634(b)(6), 634(i), 637(a), 648(l), 656(i), and 687(c); E.O. 12549, 51 FR 6370, 3 CFR, 1986 Comp., p. 189.
(r) Appeals from SBA Employee Dispute Resolution Process cases (Employee Disputes) under Standard Operating Procedure (SOP) 37 71 (available at
(t) Petitions for reconsideration of revised, modified, or established size standards pursuant to 15 U.S.C. 632(a)(9).
The addition to read as follows:
(b) * * *
(7) For Size Standard Petitions, in subpart I of this part (§ 134.901
The addition to read as follows:
(b) * * *
(4) Size Standard Petitions; and
The revisions to read as follows:
(a) An appeal from a Step Two decision must be commenced by filing an appeal petition within 15 calendar days from the date the Employee receives the Step Two decision.
(b) If the Step Two Official does not issue a decision within 15 calendar days of receiving the SBA Dispute Form from the Employee, the Employee must file his/her appeal petition at OHA no later than 15 calendar days from the date the Step Two decision was due.
The revisions to read as follows:
(a) * * *
(1) The completed SBA Dispute Form;
(2) A copy of the Step One and Step Two decisions, if any;
(3) Statement of why the Step Two decision (or Step One decision, if no Step Two decision was received), is alleged to be in error;
(b) * * *
(1) The Step Two Official;
(a) If the Chief Human Capital Officer, General Counsel for SBA, or General Counsel for the IG believes OHA's decision is contrary to law, rule, regulation, or SBA policy, that official may file a Petition for Review (PFR) of the decision with the Deputy Administrator (or IG for disputes by OIG employees) for a final SBA Decision. Only the Chief Human Capital Officer, General Counsel, or IG may file a PFR of an OHA decision; the Employee may not.
(b) To file a PFR, the official must request a complete copy of the dispute file from the Assistant Administrator for OHA (AA/OHA) within five calendar days of receiving the decision. The AA/OHA will provide a copy of the dispute file to the official, the Employee, and the Employee's representative within five calendar days of the official's request. The official's PFR is due no later than 15 calendar days from the date the official receives the dispute file. The PFR must specify the objections to OHA's decision.
(a) The rules of practice in this subpart I apply to Size Standard Petitions.
(b) Except where inconsistent with this subpart, the provisions of subparts A and B of this part apply to Size Standard Petitions listed in paragraph (a) of this section.
(a) A Size Standard Petition may be filed with OHA by any person that is adversely affected by the Administrator's decision to revise, modify, or establish a size standard.
(b) A business entity is not adversely affected unless it conducts business in the industry associated with the size standard that is being challenged and:
(1) The business entity qualified as a small business concern before the size standard was revised or modified; or
(2) The business entity qualifies as a small business under the size standard as revised or modified.
(a) A Size Standard Petition must be filed at OHA not later than 30 calendar days after the publication in the
(b) A Size Standard Petition filed in response to a notice of proposed rulemaking is premature and will be dismissed.
(c) A Size Standard Petition challenging a size standard that has not been revised, modified, or established through publication in the
(a)
(1) A copy of the final rule published in the
(2) A full and specific statement as to which size standard(s) in the final rule the Petitioner is challenging and why the process that was used to revise, modify, or establish each challenged size standard is alleged to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, together with argument supporting such allegation;
(3) A copy of any comments the Petitioner submitted in response to the proposed notice of rulemaking that pertained to the size standard(s) in question, or a statement that no such comments were submitted; and
(4) The name, mailing address, telephone number, facsimile number, email address, and signature of the Petitioner or its attorney.
(b)
(c)
(d)
(1) SBA's Office of Size Standards, U.S. Small Business Administration, 409 3rd Street SW., Mail Code 6530, Washington, DC 20416, facsimile number (202) 205-6390; or
(2) SBA's Office of General Counsel, Associate General Counsel for Procurement Law, U.S. Small Business Administration, 409 3rd Street SW., Washington, DC 20416; facsimile number (202) 205-6873; or
(e)
Upon receipt of a Size Standard Petition, OHA will assign the matter to a Judge in accordance with § 134.218. Unless it appears that the Size Standard Petition will be dismissed under § 134.910, the presiding Judge will issue a notice and order initiating the publication required by § 121.102(f) of this chapter; specifying a date for the Office of Size Standards to transmit to OHA a copy of the administrative record supporting the revision, modification, or establishment of the challenged size standard(s); and establishing a date for the close of record. Typically, the administrative record will be due seven calendar days after issuance of the notice and order, and the record will close 45 calendar days from the date of OHA's receipt of the Size Standard Petition.
In accordance with § 134.210(b), interested persons with a direct stake in the outcome of the case may contact OHA to intervene in the proceeding and obtain a copy of the Size Standard Petition. In the event that the Size Standard Petition contains confidential information and the intervener is not a governmental entity, the Judge may require that the intervener's attorney be admitted to a protective order before obtaining a complete copy of the Size Standard Petition.
The provisions of § 134.204 apply to the filing and service of all pleadings and other submissions permitted under this subpart unless otherwise indicated in this subpart.
The Office of Size Standards will transmit to OHA a copy of the documentation and analysis supporting the revision, modification, or establishment of the challenged size standard by the date specified in the notice and order. The Chief, Office of Size Standards, will certify and authenticate that the administrative record, to the best of his or her knowledge, is complete and correct. The Petitioner and any interveners may, upon request, review the administrative record submitted to OHA. The administrative record will include the documentation and analysis supporting the revision, modification, or establishment of the challenged size standard.
The standard of review for deciding a Size Standard Petition is whether the process employed by the Administrator to revise, modify, or establish the size standard was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. OHA will not adjudicate arguments that a different size standard should have been selected. The Petitioner bears the burden of proof.
The Judge must dismiss the Size Standard Petition if:
(a) The Size Standard Petition does not, on its face, allege specific facts that if proven to be true, warrant remand of the size standard;
(b) The Petitioner is not adversely affected by the final rule revising, modifying, or establishing a size standard;
(c) The Size Standard Petition is untimely or premature pursuant to § 134.903 or is not otherwise filed in accordance with the requirements in subparts A and B of this part; or
(d) The matter has been decided or is the subject of adjudication before a court of competent jurisdiction over such matters.
Although not required, any intervener may file and serve a response supporting or opposing the Size Standard Petition at any time prior to the close of record. SBA may intervene as of right at any time in any case until 15 days after the close of record, or the issuance of a decision, whichever comes first. The response must present argument.
Discovery will not be permitted. Oral hearings will not be held unless the Judge determines that the dispute cannot be resolved except by the taking of live testimony and the confrontation of witnesses.
Disputes under this subpart ordinarily will be decided based on the pleadings and the administrative record. The Judge may admit additional evidence upon a motion establishing good cause.
The Judge will issue his or her decision within 45 calendar days after close of the record, as practicable. The Judge's decision is final and will not be reconsidered.
If OHA grants a Size Standard Petition, OHA will remand the matter to the Office of Size Standards for further analysis. Once remanded, OHA no longer has jurisdiction over the matter unless a new Size Standard Petition is filed as a result of a new final rule published in the
(a) If OHA grants a Size Standard Petition of a modified or revised size standard, the Administrator will promptly publish a
(b) If OHA denies a Size Standard Petition, the size standard remains as published in the
A prevailing Petitioner is not entitled to recover attorney's fees. Size Standard Petitions are not proceedings that are required to be conducted by an Administrative Law Judge under § 134.603.
The publication of a final rule in the
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify area navigation (RNAV) routes Q-39 and Q-67, in the eastern United States. The modifications would provide a more efficient airway design within a portion of the airspace assigned to the Indianapolis Air Route Traffic Control Center (ARTCC).
Comments must be received on or before November 21, 2016.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1 (800) 647-5527 or (202) 366-9826. You must identify FAA Docket No. FAA-2016-9086 and Airspace Docket No. 15-AEA-7 at the beginning of your comments. You may also submit comments through the Internet at
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.
Paul Gallant, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.
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 the 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 modifies the air traffic service route Q-39 and Q-67 in the eastern United States to maintain the efficient flow of air traffic.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers (FAA Docket No. FAA-2016-9086 and Airspace Docket No. 15-AEA-7) and be submitted in triplicate to the Docket Management Facility (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2016-9086 and Airspace Docket No. 15-AEA-7.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
This document proposes to amend 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
The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the alignment of RNAV routes Q-39 and Q-67 in the eastern United States. The proposed modifications would expand the availability of area navigation routes and provide a more efficient airway design within Indianapolis ARTCC's airspace. The proposed route changes are outlined below.
Q-39 RNAV route Q-39 extends between the CLAWD, NC waypoint (WP) and the WISTA, WV, WP. The FAA proposes to shift the alignment of the route slightly to the east bypassing the WISTA WP to cross the TARCI, WV, WP (located at lat. 38°16′36.08 N., long. 081°18′34.08 W.); then the route would continue northward to a new ASERY, WV, WP (located at lat. 38°28′35.97 N., long. 081°17′34.14″ W.).
Q-67 RNAV route Q-67 extends between the SMTTH, TN, WP to the COLTZ, OH, fix. In its current alignment, the route proceeds from the JONEN, KY, WP northward to the COLTZ, OH, fix. The FAA proposes to eliminate the segment between the JONEN WP and the CLOTZ fix and replace it with a segment from the JONEN WP to the DARYN, WV, WP (located at lat. 38°46′07.80″ N., long. 082°00′57.92″ W.). The DARYN WP is located near the Henderson, WV VORTAC.
These route modifications are being proposed to enhance the efficiency of the route structure.
RNAV routes are published in paragraph 2006 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 RNAV routes listed in this document will be subsequently published in the Order.
The FAA has determined that this proposed 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 Department of Transportation (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.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Federal Energy Regulatory Commission, Department of Energy.
Proposed revisions to electric quarterly report reporting requirements.
In this document, pursuant to sections 205 and 220 of the Federal Power Act (FPA), the Federal Energy Regulatory Commission (Commission) seeks comments on proposed revisions and clarifications of Electric Quarterly Report (EQR) reporting requirements and corresponding updates to the EQR Data Dictionary. In particular, this document proposes to: Require transmission providers to report ancillary services transaction data, to require filers to submit in the EQR certain tariff-related information that they submit in the e-Tariff system, and to require filers to submit time zone information in connection with transmission capacity reassignment transactions. This document also proposes to clarify how filers should report booked out transactions and seeks comments on issues relating to booked out transactions.
Comments on this proposal are due December 6, 2016.
1. In this document, pursuant to sections 205 and 220 of the Federal Power Act,
2. In Order No. 2001,
3. On June 16, 2016, the Commission issued an order implementing certain clarifications to the EQR reporting requirements and updating the EQR Data Dictionary.
4. The Commission proposes to make further revisions and clarifications to the existing EQR reporting requirements based on a review of existing EQR data and reporting practices. Unlike the minor or non-material changes implemented in the June 16 Order, the revisions and clarifications proposed in this document may be more significant for EQR filers to implement. Accordingly, the Commission seeks comments on the revisions and clarifications proposed in this document.
5. In Order No. 888, the Commission adopted six ancillary services to be included in the Open Access Transmission Tariff (OATT).
6. In Order No. 697,
7. Following the issuance of Order No. 697, in Order No. 2001-I, the Commission clarified that third-party providers of ancillary services must submit information about their ancillary services associated with unbundled sales of transmission services in the Transaction Data section of the EQR, and that information about ancillary services reported by transmission providers should only be reported in the Contract Data section of the EQR.
8. As stated above, unlike third-party providers of ancillary services, which must report information about their ancillary services in both the Contract Data and Transaction Data sections of the EQR, the Commission has required transmission providers to report only information about their ancillary services agreements in the Contract Data section if the contract provides for the sale of the ancillary services product. We propose to require transmission providers to report information about transactions made under their ancillary services agreements in the Transaction Data section of the EQR. Although transmission providers currently report information about their ancillary services agreements, without information about the transactions taking place under those agreements, there is inadequate visibility into the actual sales and rates being charged for ancillary services, especially where transmission providers have increased their reliance on markets to meet their ancillary services obligations. Therefore, we propose to obtain additional information about ancillary services from transmission providers to help the Commission, the public, and the industry determine the actual rates being charged for service under these agreements and to increase price transparency into the wholesale ancillary services markets. In addition, this information would enable the Commission to better evaluate the competitiveness of these markets and strengthen its ability to monitor them.
9. We seek comments on this proposal and on our proposal to revise the definitions of ancillary services-related product names in Appendix A to delete: “For Transactions, sales by third-party providers (
10. The “FERC Tariff Reference” in Field Numbers 19 and 48 must be reported in both the Contract Data and Transaction Data sections of the EQR. Based on a review of EQR data, the tariff-related information submitted in these fields can be inconsistent or inaccurate. As a result, we propose that sellers input in Field Numbers 19 and 48 a subset of the tariff information that sellers currently use to report their tariff-related data in the e-Tariff system. In particular, we propose to require sellers to submit, in Field Numbers 19 and 48, four of the Business Names associated with their tariff (
11. In Order No. 768, the Commission eliminated “Time Zone” (previously listed as Field Number 45) from the Contract Data Section of the EQR.
12. “Booked Out Power” is a product currently defined in Appendix A of the EQR Data Dictionary as “[e]nergy or capacity contractually committed bilaterally for delivery but not delivered due to some offsetting or countervailing trade (Transaction only).” As stated in Order No. 2001, the power sales that make up book out transactions are typically for the sale for resale of electric energy in interstate commerce.
13. Based on a review of EQR data, it appears that submissions related to “Booked Out Power” frequently contain inconsistent or inaccurate information. Without accurate reporting of booked out transactions, it is difficult to determine how much power is being traded compared to how much power is actually being delivered. Moreover, such inconsistencies or inaccuracies in reporting booked out transactions can distort the price and volume information related to power sales that is reported in the EQR. As a result, the Commission proposes to further clarify below what should be considered booked out transactions and provides several examples of how to properly report this information.
14. In addition, we find that, based on the current EQR database configuration, it is not possible to differentiate book outs of energy or capacity because EQR filers do not have the option to distinguish between the two products. As a result, we propose to replace the existing product name “Booked Out Power” in Appendix A of the EQR Data Dictionary with the product names “Booked Out Energy” and “Booked Out Capacity.” Accordingly, if the booked out transaction involves a book out of energy, the EQR filer should report it under the product name “Booked Out Energy,” and if the booked out transaction involves a book out of capacity, the EQR filer should report it under the product name “Booked Out Capacity.” “Booked Out Energy” will be defined in Appendix A as: “Energy contractually committed for delivery but not actually delivered due to some offsetting or countervailing trade (Transaction only).” “Booked Out Capacity” will be defined in Appendix A as: “Capacity contractually committed for delivery but not actually delivered due to some offsetting or countervailing trade (Transaction only).” We seek comments on the burden and impact of these proposals.
15. With respect to our proposed clarifications on how EQR filers should report booked out transactions, we note that, in Order No. 2001, the Commission explained that booked out transactions occur “when the cumulative effect of a number of separate sales between
16. Some of the inaccuracies or inconsistencies in reporting booked out transactions may stem from filers' confusion as to whether booked out transactions need only be reported when they involve the same two counterparties rather than multiple parties. The Commission hereby proposes to clarify that booked out transactions must be reported in the EQRs regardless of the number of parties involved in these transactions. In an effort to further clarify which booked out transactions should be reported, we provide the following examples and seek comment on whether they are sufficiently clear. First, we note that a booked out transaction can be set forth as a direct countervailing transaction that occurs when two companies, both of whom are selling physical energy to each other for the same delivery period, mutually agree to exchange their physical delivery obligations to each other, but maintain all of their other obligations, including payment. In practice, this would look like the following: Company A is contractually committed to sell 100 megawatt hours (MWh) to Company B on 5/5/15 from 10:00 a.m. to 11:00 a.m. for $50/MWh. When scheduling and tagging, the scheduler notices that Company B is contractually committed to sell 50 MWh to Company A on 5/5/15 from 10:00 a.m. to 11:00 a.m. for $40/MWh. Because there is no need to pay for transmission of both complete transactions (
17. Company A and Company B should report this booked out transaction in the EQR as shown in the table below:
18. Second, a booked out transaction as a curtailment occurs when one company is selling energy to another company and, in real time, the company buying the energy signals the seller to reduce the amount of energy it is providing to the buyer, in exchange for a curtailment payment commensurate with the reduced production. In practice, this would look like the following: Company C is contractually committed to sell 100 MWh to Company D on 5/5/15 from 11:00 a.m. to 12:00 p.m. for $30/MWh. On 5/5/15, just prior to 11:00 a.m., Company C is signaled to curtail its transmission of energy from 11:00 a.m. to 12:00 p.m. from 100 MWh to 50 MWh. Company C will receive a curtailment payment based on its contract with Company D equal to $35/MWh times the difference between Company C's curtailed level of production (
19. Company C should report this transaction as shown in the table below:
20. Finally, a booked out transaction known as a daisy chain occurs when there are at least three companies in a chain of energy sales and at least one company appears twice in that chain (
21. Company E, Company F, and Company G should report this booked out transaction in the EQR as shown in the table below:
22. We also seek comments on whether there are other aspects of booked out transactions that have caused filers confusion and that the Commission should clarify.
23. The Paperwork Reduction Act (PRA)
24. We solicit comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the provided burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques.
25. The proposals in this document will affect public utilities and certain non-public utilities. The proposals would require transmission providers to report ancillary services transaction data; require filers to submit into the FERC Tariff Reference fields in the EQR certain tariff-related information that they currently submit in the e-Tariff system; and require EQR filers to submit time zone information in connection with transmission capacity reassignment transactions. The proposals in this document also clarify how booked out transactions should be reported in the EQR.
26. There are approximately 2,196 public utilities and about 40 non-public utilities that currently file EQRs. About 405 of the 2,196 public utilities only submit data in the ID Data section of the EQR
27. Burden Estimate: The estimated burden and cost
For public and non-public utilities, the hourly cost (rounded, for salary plus benefits) for one-time implementation are computed as follows:
• For “Reporting Ancillary Service Transactions,” “Reporting e-Tariff Data Fields,” and “Reinstating `Time Zone' Field in Contracts,” the estimated cost is $71/hour.
• For “Distinguishing Booked Out Transactions,” the estimated cost is $80/hour.
For public and non-public utilities, the ongoing hourly costs (rounded, for salary plus benefits) are computed as follows.
• For the “Reporting Ancillary Service Transactions” and “Submitting Four Unique Data Fields Associated with Tariff in e-Tariff,” the estimated cost is $53/hour.
• For “Reinstating `Time Zone' Field in Contracts,” the estimated cost is $61/hour.
• For “Distinguishing Booked Out Transactions,” there is no additional ongoing cost.
28.
29.
30. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, Office of the Executive Director, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, email:
31. Comments concerning the information collections proposed in this document, and the associated burden estimates, should be sent to the Commission in this docket and may also be sent to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503 [Attention: Desk Office for the Federal Energy Regulatory Commission]. For security reasons, comments should be sent by email to OMB at the following email address:
32. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.
33. The Commission invites interested persons to submit comments on the matters and issues posted in this document, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due December 6, 2016. Comments must refer to Docket Nos. RM01-8, RM10-12, RM12-3, or ER02-2001 and must include the commenter's name, the organization they represent, if applicable, and their address. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at
34. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.
35. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.
36. In addition to publishing the full text of this document in the
37. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
38. User assistance is available for eLibrary and the Commission's Web site during the Commission's normal business hours from Commission's Online Support services at (202) 502-6652 (toll free at 1-866-208-3676) or email at
By direction of the Commission.
Food and Drug Administration, HHS.
Notice of petition.
The Food and Drug Administration (FDA or we) is announcing that we have filed a petition, submitted by Wm. Wrigley Jr. Company, proposing that the color additive regulations be amended to provide for the safe use of calcium carbonate to color hard and soft candy, mints, and chewing gum.
The color additive petition was filed on September 1, 2016.
Celeste Johnston, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740-3835, 240-402-1282.
Under section 721(d)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 379e(d)(1)), we are giving notice that we have filed a color additive petition (CAP 6C0307), submitted by Wm. Wrigley Jr. Company, c/o Exponent, 1150 Connecticut Ave. NW., Suite 1100, Washington, DC 20036. The petition proposes to amend the color additive regulations in part 73 (21 CFR part 73)
We have determined under 21 CFR 25.32(k) 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.
Occupational Safety and Health Administration (OSHA), Department of Labor.
Notice of proposed rulemaking; request for comments.
OSHA is proposing to add two modified PortaCount® quantitative fit-testing protocols to its Respiratory Protection Standard. The proposed protocols would apply to employers in general industry, shipyard employment, and the construction industry. Both proposed protocols are variations of the existing OSHA-accepted PortaCount® protocol, but differ from it by the exercise sets, exercise duration, and sampling sequence. If approved, the modified PortaCount® protocols would be alternatives to the existing quantitative fit-testing protocols already listed in an appendix of the Respiratory Protection Standard. In addition, OSHA is proposing to amend an appendix to clarify that PortaCount® fit test devices equipped with the N95-Companion
Submit comments to this proposal, including comments to the information collection (paperwork) requirements, by December 6, 2016.
If you submit scientific or technical studies or other results of scientific research, OSHA requests (but does not require) that you also provide the following information where it is available: (1) Identification of the funding source(s) and sponsoring organization(s) of the research; (2) the extent to which the research findings were reviewed by a potentially affected party prior to publication or submission to the docket, and identification of any such parties; and (3) the nature of any financial relationships (
Electronic copies of this
For general information and press inquiries, contact Frank Meilinger, Director, Office of Communications, Room N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1999; email
Appendix A of OSHA's Respiratory Protection Standard, 29 CFR 1910.134, currently includes four quantitative fit-testing protocols using the following challenge agents: A non-hazardous generated aerosol such as corn oil, polyethylene glycol 400, di-2-ethyl hexyl sebacate, or sodium chloride; ambient aerosol measured with a condensation nuclei counter (CNC), also known as the standard PortaCount® protocol; controlled negative pressure; and controlled negative pressure REDON. Appendix A of the Respiratory Protection Standard also specifies the procedure for adding new fit-testing protocols to this standard. Under that procedure, if OSHA receives an application for a new fit-testing protocol meeting certain criteria, the Agency must commence a rulemaking proceeding to consider adopting the proposal. These criteria include: (1) A test report prepared by an independent government research laboratory (
In 2006, TSI Incorporated (hereinafter referred to as TSI) submitted two quantitative fit-testing protocols for acceptance under the Respiratory Protection Standard. OSHA published a notice of proposed rulemaking (NPRM) for those protocols on January 21, 2009 (74 FR 3526-01). The proposed protocols used the same fit-testing requirements and instrumentation specified for the standard PortaCount® protocol in paragraphs (a) and (b) of Part I.C.3 of appendix A of the Respiratory Protection Standard, except:
• Revised PortaCount® QNFT protocol 1 reduced the duration of the eight fit-testing exercises from 60 seconds to 30 seconds; and
• Revised PortaCount® QNFT protocol 2 eliminated two of the eight fit-testing exercises, with each of the remaining six exercises having a duration of 40 seconds; in addition, this proposed protocol increased the minimum pass-fail fit-testing criterion (
OSHA withdrew the NPRM on January 27, 2010 (75 FR 4323-01). In withdrawing the NPRM, the Agency concluded that the study data failed to adequately demonstrate that these protocols were sufficiently accurate or as reliable as the quantitative fit-testing protocols already listed in appendix A. OSHA found that the studies submitted with the application did not differentiate between results for half-mask and full-facepiece respirators. OSHA also determined that TSI had not demonstrated that these protocols would accurately determine fit for filtering facepiece respirators.
One of the OSHA-accepted quantitative fit test protocols listed in appendix A is the standard PortaCount® protocol. The standard PortaCount® protocol and instrumentation was introduced by TSI in 1987, and the use of the standard PortaCount® protocol was originally allowed by OSHA under a compliance interpretation published in 1988, until it was incorporated into appendix A in 1998.
In a letter dated July 10, 2014, Darrick Niccum of TSI submitted an application requesting that OSHA approve three additional PortaCount® quantitative fit test protocols to add to appendix A (TSI, 2014a). These three additional protocols are modified versions of the standard PortaCount® protocol. Mr. Niccum included a copy of three peer-reviewed articles from the industrial-hygiene journal, entitled
For consistency with the terminology used in the three peer-reviewed articles, OSHA will, in this section of the NPRM (
All three of TSI's modified PortaCount® protocols use the same fit-testing requirements and instrumentation specified for the standard PortaCount® protocol in paragraphs (a) and (b) of Part I.C.3 of
The peer-reviewed article entitled “Evaluation of a Faster Fit Testing Method for Elastomeric Half-Mask Respirators Based on the TSI PortaCount®,” appeared in a 2014 issue (Volume 31, Number 1) of the
Test subjects donned the respirator for a five-minute comfort assessment and then performed two sets of fit-test exercises, either using the Reference method or the Fast-Half method. The order of the two sets of fit-test exercises was randomized. The Reference method consisted of the eight standard OSHA exercises listed in Section I.A.14 of appendix A of the Respiratory Protection Standard, minus the grimace exercise, in the same order as described in the standard (
According to TSI, the study authors chose not to include the grimace exercise because little or no support was found for the grimace exercise among respirator fit-test experts (TSI, 2015a). TSI explained that “[t]he most common fault expressed by a number of experienced fit testers and industry experts was that the grimace cannot be consistently applied or even defined (TSI, 2015a).” They further commented that the grimace is intended to break the face seal and may not reseal in the same way for subsequent exercises. As a result, the shift in the respirator can potentially confound comparison of the fit-test methods. TSI also noted that the fit factor from the grimace (if measured) is not used to calculate the overall fit factor test result under the standard PortaCount® method (TSI, 2015a).
The Fast-Half method included four exercises—bending, jogging in place, head side-to-side and head up-and-down. Two breaths were taken at each extreme of the head side-to-side and head up-and-down exercises and at the bottom of the bend in the bending exercise.
Although not discussed in the peer-reviewed journal article, TSI explained their rationale for selecting the exercises that were the most rigorous for (
A single CPC instrument, PortaCount® Model 8030 (TSI Incorporated, Shoreview MN), was used throughout the Fast-Half method validation experiments. The instrument was connected to two equal-length sampling tubes for sampling inside-facepiece and ambient particle concentrations. TSI software was used to switch between sampling lines and record concentration data. The experiments were conducted in a large chamber to which a NaCl aerosol was added to augment particle concentrations, which were expected to range between 5,000 and 20,000 particles/cm
During the Reference method, for each exercise, the ambient sampling tube was first purged for 4 seconds before an ambient sample was taken for 5 seconds, followed by an 11-second purge of the in-facepiece sampling tube and a 40-second in-facepiece sample. The Reference method took a total of 429 seconds (7 minutes 9 seconds) to complete.
During the first exercise of the Fast-Half method (bending over), the ambient sampling tube was first purged for 4 seconds before an ambient sample was taken for 5 seconds; the in-facepiece sampling tube was then purged for 11 seconds and a sample was then taken from inside the mask for 30 seconds. No ambient sample was taken during the next two exercises (jogging and head side-to-side)—just one 30-second in-facepiece sample was collected for each exercise. For the last exercise (head up-and-down), a 30-second in-facepiece sample was taken, after which a 4-second ambient purge and 5-second ambient sample were conducted. The Fast-Half method took a total of 149 seconds (2 minutes 29 seconds) to complete.
For the Reference method, the authors calculated a fit factor for each exercise by dividing the in-facepiece
For the Fast-Half method, the ambient concentration was calculated by taking the mean of two measurements—one before the first exercise and one after the last exercise. The authors calculated fit factors for each exercise by dividing the in-facepiece concentration taken during that exercise by the mean ambient concentration. As with the Reference method, the harmonic mean of the four exercise fit factors represented the overall fit factor. A minimum fit factor of 100 is required in order to be regarded as an acceptable fit for half-mask respirators under appendix A of the Respiratory Protection Standard.
To ensure that respirator fit was not significantly altered between the two sets of exercises, a 5-second normal breathing fit factor assessment was included before the first exercise set, between the two sets of exercises and at the completion of the second exercise set. If the ratio of the maximum to minimum of these three fit factors was greater than 100, this experimental trial was excluded from data analysis.
The ANSI/AIHA standard specifies that an exclusion zone within one coefficient of variation for the Reference method must be determined. The exclusion zone is the range of measured fit factors around the pass/fail fit factor of 100 which cannot be confirmed to be greater than 100 or less than 100 with adequate confidence and, therefore, should not be included in evaluating performance. TSI determined the variability associated with the Reference method using 48 pairs of fit factors from 16 participants. The exclusion zone was defined as fit factor measurements within one standard deviation of the 100 pass/fail value. Six pairs of fit factors were omitted because the normal breathing fit factor ratio exceeded 100 and 5 pairs of fit factors were omitted because they were identified as outliers (>3 standard deviations from the mean of the remaining data points). The exclusion zone calculated by the study authors ranged from 82-123 and did not include the five outliers. During review of the study methods, OSHA felt that omitting outliers to define a variability-based exclusion zone deviated from the usual scientific practice. Therefore, OSHA recalculated the exclusion zone with the outlier data included in the analysis (Brosseau and Jones, 2015). The recalculated exclusion zone was somewhat wider, ranging from 68 to 146.
The final dataset for the ANSI/AIHA Fast-Half performance evaluation included 134 pairs of fit factors from 25 participants. Equivalent fractions of each respirator and model were included. Eleven pairs were omitted because the ratio of maximum to minimum normal breathing fit factors was greater than 100 and 1 pair was omitted due to a methodological error; 122 pairs were included in the data analysis.
According to the statistical procedures utilized in the study, the Fast-Half method, even utilizing the wider OSHA-recalculated exclusion zone, met the required acceptance criteria for test sensitivity, predictive value of a pass, predictive value of a fail, test specificity, and kappa statistic
The peer-reviewed article entitled “Evaluation of a Faster Fit Testing Method for Full-Facepiece Respirators Based on the TSI PortaCount®,” appeared in a 2013 issue (Volume 30, Number 2) of the
TSI determined the variability associated with the Reference method using 54 pairs of fit factors from 17 participants. The exclusion zone was defined as fit factor measurements within one standard deviation of the 500 pass/fail value. Five pairs of fit factors were omitted because the normal breathing fit factor ratio exceeded 100, and three pairs of fit factors were omitted because they were identified as outliers (>3 standard deviations from the mean of the remaining data points). The exclusion zone calculated by the study authors ranged from 345-726 and did not include the three outliers. OSHA recalculated the exclusion zone with the outlier data included in the analysis (Brosseau and Jones, 2015). The recalculated exclusion zone determined by OSHA was somewhat wider ranging from 321-780.
The final dataset for the ANSI/AIHA Fast-Full performance evaluation included 148 pairs of fit factors from 27 participants. Equivalent fractions of each respirator and model were included. Eleven pairs were omitted because the ratio of maximum to minimum normal breathing fit factors was greater than 100; 1 pair was omitted due to an observational anomaly; 136 pairs were included in the data analysis.
According to the statistical procedures utilized in the study, the Fast-Full method, even utilizing the wider OSHA-recalculated exclusion zone, met the required acceptance criteria for test sensitivity, predictive value of a pass, predictive value of a fail, test specificity, and kappa statistic as defined in ANSI/AIHA Z88.10-2010 (see Table 1). The authors concluded that the results demonstrated that the new Fast-Full method can identify poorly fitting respirators as well as the reference method.
The peer-reviewed article, entitled “Evaluation of a Faster Fit Testing Method for Filtering Facepiece Respirators Based on the TSI PortaCount®,” appeared in a 2014 issue (Volume 31, Number 1) of the
The study plan for FFR called for 10 N95 FFR. Unlike elastomeric respirators, FFR designs vary widely and are typically not offered in different sizes. The authors felt it was important to use a variety of designs that represent the styles currently available in the US. Of the 10 models used, 6 were cup-shaped, 2 were vertical-fold, and 2 were horizontal-fold designs. The cup-shaped style is by far the most common, which is why 6 of the 10 model selected have that fundamental design. Four flat-fold designs (2 vertical-fold and 2 horizontal-fold) models are also included.
Respirators were probed with a flush sampling probe located between the nose and mouth. Lightweight sample tubing and neck straps were used to ensure the tubing did not interfere with respirator fit. Twenty-nine participants (11 female; 18 male) were included in the study; face sizes were predominantly in the smaller and central cells (1, 2, 3, 4, 5, 7, 8) of the NIOSH bivariate panel; 1 subject was in cell 6 and no subjects were in cells 9 or 10 (those with longer—nose to chin—face sizes). The Reference method, test aerosol, and most other study procedures were analogous to those used for the Fast-Half and Fast-Full methods. However, the Fast-FFR method employed these four exercises: Bending, talking, head side-to-side and head up-and-down with the same sampling sequence and durations as the other test protocols. The talking exercise replaces the jogging exercise used in the Fast-Half and Fast-Full methods. TSI decided not to eliminate the talking exercise for FFRs even though their pilot study indicated that it rarely produces the lowest fit factor (TSI, 2015a). They felt from their own experience that jogging does not represent the kind of motions that FFR wearers do when using the respirator (TSI, 2015a). TSI also indicated that the sampling probe configured on lightweight FFR respirators caused the respirator to pull down and away from the face during jogging creating unintentional leakage. A PortaCount® Model 8038 operated in the N95 mode (TSI Inc., Shoreview MN), was used to measure aerosol concentrations throughout the experiments. The particle concentrations in the test chamber were expected to be greater than 400 p/cm
The study administered sequential paired fit tests using the Fast-FFR method and a reference method according to the ANSI/AIHA standard. TSI determined the variability associated with the Reference method using 63 pairs of fit factors from 14 participants. The exclusion zone was defined as fit factor measurements within one standard deviation of the 500 pass/fail value. Two pairs of fit factors were omitted because the normal breathing fit factor ratio exceeded 100, and six pairs of fit factors were omitted because they were identified as outliers (>3 standard deviations from the mean of the remaining data points). The exclusion zone calculated by the study authors ranged from 78-128 and did not include the six outliers. OSHA recalculated the exclusion zone with the outlier data included in the analysis (Brosseau and Jones, 2015). The recalculated exclusion zone was somewhat wider ranging from 69-144.
The final dataset for the ANSI/AIHA Fast-FFR performance evaluation included 114 pairs from 29 participants. Equivalent fractions of each respirator and model were included. Two pairs were omitted because the ratio of maximum to minimum normal breathing fit factors was greater than 100; 112 pairs were included in the data analysis.
According to the statistical procedures utilized in the study, the Fast-FFR method, even utilizing the wider OSHA-recalculated exclusion zone, met the required acceptance criteria for test sensitivity, predictive value of a pass, predictive value of a fail, test specificity, and kappa statistic as defined in ANSI/AIHA Z88.10-2010 (see Table 1). The authors concluded that the results demonstrated that the new Fast-FFR method can identify poorly fitting respirators as well as the reference method.
OSHA believes that the information submitted by TSI in the July 10, 2014 letter from Mr. Niccum in support of the modified PortaCount® quantitative fit test protocols meets the criteria for determining whether OSHA must publish fit-test protocols for notice-and-comment rulemaking established by the Agency in Part II of appendix A of its Respiratory Protection Standard. Therefore, the Agency is initiating this rulemaking to determine whether to approve these proposed protocols for inclusion in Part I.C of appendix A of its Respiratory Protection Standard.
Each proposed protocol is a variation of the standard OSHA-accepted PortaCount® protocol, but differs from it by the exercise sets, exercise duration, and sampling sequence. The major difference between the proposed Fast-Full and Fast-Half methods and the standard OSHA-accepted PortaCount® protocol is they include only 3 of the 7 current test exercises (
The Agency is proposing to add two modified PortaCount® protocols to appendix A (see section V of this preamble titled “Proposed Amendment to the Standard”). If approved, the new protocols would be alternatives to the existing quantitative fit-testing protocols already listed in the Part I.C of appendix A of the Respiratory Protection Standard; employers would be free to select these alternatives or to continue using any of the other protocols currently listed in the appendix.
OSHA is also taking the opportunity of this rulemaking to make a clarifying change to appendix A of the Respiratory Protection Standard to reflect a technological development. The original PortaCount® model could only fit test elastomeric respirators (
OSHA invites comments from the public regarding the accuracy and reliability of the proposed protocols, their effectiveness in detecting respirator leakage, and their usefulness in selecting respirators that will protect employees from airborne contaminants in the workplace. Specifically, the Agency invites public comment on the following issues:
• Were the three studies described in the peer-reviewed journal articles well controlled and conducted according to accepted experimental design practices and principles?
• Were the results of the three studies described in the peer-reviewed journal articles properly, fully, and fairly presented and interpreted?
• Did the three studies treat outliers appropriately in determination of the exclusion zone?
• Will the two proposed protocols generate reproducible fit-testing results?
• Will the two proposed protocols reliably identify respirators with unacceptable fit as effectively as the quantitative fit-testing protocols, including the OSHA-approved standard PortaCount® protocol, already listed in appendix A of the Respiratory Protection Standard?
• Did the protocols in the three studies meet the sensitivity, specificity, predictive value, and other criteria contained in the ANSI/AIHA Z88.10-2010, Annex A2, Criteria for Evaluating Fit Test Methods?
• Are the specific respirators selected in the three studies described in the peer-reviewed journal articles representative of the respirators used in the United States?
• Does the elimination of certain fit-test exercises (
• Is the test exercise, jogging-in-place, that has been added to the Fast-Full and Fast-Half protocols appropriately selected and adequately explained? Should the jogging exercise also be employed for the Fast-FFR protocol? Is the reasoning for not replacing the talking exercise with the more rigorous jogging exercise in the Fast-FFR protocol (as was done in Fast-Full and Fast-Half) adequately explained?
• Was it acceptable to omit the grimace from the Reference method employed in the studies evaluating performance of the proposed fit-testing protocols? Is it appropriate to exclude the grimace completely from the proposed protocols, given that it is not used in the calculation of the fit factor result specified under the existing or proposed test methods? If not, what other criteria could be used to assess its inclusion or exclusion?
• The protocols in the three studies specify that participants take two deep breaths at the extreme of the head side-to-side and head up-and-down exercises and at the bottom of the bend in the bend-forward exercise. According to the developers of these protocols, the deep breaths are included to make the exercises more rigorous and reproducible from one subject to the next. Are these additional breathing instructions adequately explained in the studies and in the proposed amendment to the standard? Are they reasonable and appropriate?
• Does OSHA's proposed regulatory text for the two new protocols offer clear instructions for implementing the protocols accurately?
The purpose of the Occupational Safety and Health Act of 1970 (“the Act”; 29 U.S.C. 651 et seq.) is “to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources” (29 U.S.C. 651(b)). To achieve this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards (29 U.S.C. 655(b)).
Under the Act, a safety or health standard is a standard that “requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment or places of employment” (29 U.S.C. 652(8)). A standard is reasonably necessary or appropriate within the meaning of section 652(8) of the Act when it substantially reduces or eliminates a significant workplace risk, and is technologically and economically feasible, cost effective, consistent with prior Agency action or supported by a reasoned justification for departing from prior Agency action, and supported by substantial evidence; it also must effectuate the Act's purposes better than any national consensus standard it supersedes (see
Appendix A, part II of the respirator standard requires OSHA to commence a rulemaking to adopt an alternative fit test protocol where an applicant provides a detailed description the protocol supported by a test report from an independent laboratory or a published study in a peer-reviewed industrial hygiene journal showing that the protocol is accurate and reliable. In such cases, OSHA relies on the authority in section 6(b)(7) of the OSH Act. This provision allows the Agency to make updates to technical monitoring, measuring, and medical examination requirements in a standard to reflect newly developed information using the informal rulemaking notice
Based on all the submitted information, and after consultation with NIOSH, OSHA has preliminarily determined that the modified PortaCount® protocols provide employees with protections comparable to protections afforded them by the standard PortaCount® protocol already approved by the Agency. OSHA has also made a preliminary finding that the proposed rule is technologically feasible because the protective measures it requires already exist.
As OSHA has explained before, Congress adopted section 6(b)(7) to provide a simple, expedited process to update technical requirements in Agency standards to ensure that they reflect current experience and technological developments (see 77 FR 17602). OSHA believes that the provision of an expedited process to provide technical updates to existing standards shows Congress's intent that new findings of significant risk are unnecessary in such circumstances (see id.). But even if OSHA was proceeding under its normal standard setting requirements, it would need to make no new showing of significant risk because the new protocols would not replace existing fit-testing protocols, but instead would be alternatives to them. OSHA believes that the proposal would not directly increase or decrease the protection afforded to employees, nor would it increase employers' compliance burdens. As demonstrated in the following section, the proposal may reduce employers' compliance burdens by decreasing the time required to fit test respirators for employee use.
The proposal is not economically significant within the context of Executive Order 12866 (58 FR 51735), or a “major rule” under Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 804). The proposal would impose no additional costs on any private- or public-sector entity, and does not meet any of the criteria for a significant or major rule specified by Executive Order 12866 or other relevant statutes. This rulemaking allows employers increased flexibility in choosing fit-testing methods for employees, and the final rule does not require an employer to update or replace its current fit-testing method(s) as a result of this rule if the fit-testing method(s) currently in use meets existing standards. Furthermore, as discussed, because the proposed rule offers additional options that employers would select only if those options imposed no net cost burden on them, the proposed rule would not have a significant economic impact on a substantial number of small entities.
The Agency is proposing to supplement the quantitative fit-testing (QNFT) protocols currently in appendix A of the Respiratory Protection Standard, including the standard PortaCount® protocol, with the proposed modified protocols. This would provide employers additional options to fit test their employees for respirator use. Employers already using the standard PortaCount® protocol would have a choice between the existing standard PortaCount® protocol, which consists of eight exercises lasting one minute each, or the proposed protocols, which OSHA estimates would save 4.8 minutes per fit test. This time saving would provide a corresponding cost saving to the employer.
According to TSI, the PortaCount® manufacturer, “[e]xisting owners of the PortaCount® Respirator Fit Tester Pro Model 8030 and/or PortaCount® Pro+ Model 8038 will be able to utilize the new protocols without additional expense. It will be necessary to obtain a firmware and FitPro software upgrade, which TSI will be providing as a free download. As an alternative to the free download, PortaCount® Models 8030 and 8038 returned for annual service will be upgraded without additional charge. Owners of the PortaCount® Plus Model 8020 with or without the N95-Companion
Other establishments use either some other form of quantitative fit testing or qualitative fit testing. The Agency expects that the proposed protocols are less likely to be adopted by employers who currently perform fit testing using other quantitative or qualitative fit tests because of the significant equipment and training investment they already will have made to administer these fit tests. For example, it is estimated that switching from qualitative to quantitative fit testing would require an upfront investment of between $8,000 and $12,000 (TSI, 2015c).
While the Agency has estimates of the number of users of the PortaCount® technology at the establishment level, both from the manufacturer and from the 2001 NIOSH Respirator Survey, what is not known is how many respirator wearers, that is, employees, are fit tested using a PortaCount® device. The Agency expects that economies of scale would apply in this situation—larger establishments would be more likely to encounter situations needing QNFT, but would also have more employees over which to spread the capital costs. Once employers have invested capital in a quantitative fit-testing device, they are likely to perform QNFT on a number of other devices and users, even if not all those devices require QNFT. If sufficiently large, some employers apparently choose to invest in a QNFT device, even though none of the respirator users may technically be required to use a QNFT. Also, some QNFT devices are acquired by third parties, or “fit-testing houses,” that provide fit-testing services to employers. In short, employers using PortaCount®
Nonetheless, it is possible to develop a plausible estimate of the number of potentially affected respirator wearers, in which these two sets of data converge. For example, if one starts with an estimate of 12,000 establishments using PortaCount® models 8030 and 8038 annually for all of their employees and assumes an average of 100 respirator wearers fit tested annually per establishment, this would yield an estimate of 1.2 million respirator wearers that could potentially benefit from the new QNFT protocol.
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601
The purposes of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
A Federal agency may not conduct or sponsor a collection of information unless it is approved by the Office of Management and Budget (OMB) under the PRA and displays a currently valid OMB control number; the public is not required to respond to a collection of information unless it displays a currently valid OMB control number. When a NPRM includes an information collection, the sponsoring agency must submit a request to the OMB in order to obtain PRA approval. OSHA is submitting an Information Collection Request (ICR), concurrent with the publication of this NPRM. A copy of this ICR with applicable supporting documentation, including a description of the likely respondents, proposed frequency of response, and estimated total burden, may be obtained free of charge from the RegInfo.gov Web site at
The proposed protocols of this NPRM would revise the information collection in a way that reduces existing burden hours and costs. In particular, the paperwork requirement specified in paragraph (m)(2) of OSHA's Respiratory Protection Standard, at 29 CFR 1910.134, specifies that employers must document and maintain the following information on quantitative fit tests administered to employees: The name or identification of the employee tested; the type of fit test performed; the specific make, model, style, and size of respirator tested; the date of the test; and the test results. The employer must maintain this record until the next fit test is administered. While the information on the fit-test record remains the same, the time to obtain the necessary information for the fit-test record could be reduced since some of the proposed protocols would take an employer less time to administer that those currently approved in appendix A. OSHA accounts for this burden under the Information Collection Request, or paperwork analysis, for the Respiratory Protection Standard (OMB Control Number 1218-0099).
OSHA has estimated that the addition of a new protocol, which takes less time to administer, will result in a burden hour reduction of 150,432 hours. OSHA has submitted a revised Respiratory Protection ICR reflecting this reduction to OMB. As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), OSHA is providing the following summary information about the Respiratory Protection information collection:
The Agency solicits comments on these determinations. In addition, the Agency is particularly interested in comments that:
• Evaluate whether the collections of information are necessary for the proper
• Evaluate the accuracy of OSHA's estimate of the burden (time and cost) of the information collection requirements, including the validity of the methodology and assumptions used;
• Evaluate the quality, utility and clarity of the information collected; and
• Evaluate ways to minimize the compliance burden on employers, for example, by using automated or other technological techniques for collecting and transmitting information.
Members of the public who wish to comment on the Agency's collection of information may send their written comments to the Office of Information and Regulatory Affairs, Attn: Desk Officer for DOL-OSHA, Office of Management and Budget, Room 10235, Washington DC 20503. You may also submit comments to OMB by email at
OSHA reviewed the proposal according to the Executive Order on Federalism (E.O. 13132, 64 FR 43255, Aug. 10, 1999), which requires that Federal agencies, to the extent possible, refrain from limiting state policy options, consult with states before taking actions that would restrict states' policy options and take such actions only when clear constitutional authority exists and the problem is of national scope. The Executive Order provides for preemption of state law only with the expressed consent of Congress. Federal agencies must limit any such preemption to the extent possible.
Under section 18 of the Occupational Safety and Health Act (the “Act,” 29 U.S.C. 651
With respect to states that do not have OSHA-approved plans, the Agency concludes that this proposed rule conforms to the preemption provisions of the Act. Section 18 of the Act prohibits states without approved plans from issuing citations for violations of OSHA standards. The Agency finds that the proposed rulemaking does not expand this limitation. Therefore, for States that do not have approved occupational safety and health plans, this proposed rule would not affect the preemption provisions of Section 18 of the Act.
OSHA's proposal for additional fit-testing protocols under its Respiratory Protection Standard at 29 CFR 1910.134 is consistent with Executive Order 13132 because the problems addressed by these fit-testing requirements are national in scope. The Agency preliminarily concludes that the fit-testing protocols proposed by this rulemaking would provide employers in every state with procedures that would assist them in protecting their employees from the risks of exposure to atmospheric hazards. In this regard, the proposal offers thousands of employers across the nation an opportunity to use additional protocols to assess respirator fit among their employees. Therefore, the proposal would provide employers in every state with an alternative means of complying with the fit-testing requirements specified by paragraph (f) of OSHA's Respiratory Protection Standard.
Should the Agency adopt a proposed standard in a final rulemaking, Section 18(c)(2) of the Act (29 U.S.C. 667(c)(2)) requires State Plan states to adopt the same standard, or to develop and enforce an alternative standard that is at least as effective as the OSHA standard. However, the new fit-testing protocols proposed in this rulemaking would only provide employers with alternatives to the existing fit-testing protocols specified in the Respiratory Protection Standard; therefore, the alternative is not, itself, a mandatory standard. Accordingly, states with OSHA-approved State Plans would not be obligated to adopt the final provisions that may result from this proposed rulemaking. Nevertheless, OSHA strongly encourages them to adopt the final provisions to provide additional compliance options to employers in their states.
In summary, this proposal complies with Executive Order 13132. In states without OSHA-approved State Plans, this proposed rule limits state policy options in the same manner as other OSHA standards. In State Plan states, this rulemaking does not significantly limit state policy options.
Section 18(c)(2) of the Act (29 U.S.C. 667(c)(2)) requires State-Plan states to adopt mandatory standards promulgated by OSHA. However, as noted in the previous section of this preamble, states with OSHA-approved State Plans would not be obligated to adopt the final provisions that may result from this proposed rulemaking. Nevertheless, OSHA strongly encourages them to adopt the final provisions to provide compliance options to employers in their States. In this regard, OSHA preliminarily concludes that the fit-testing protocols proposed by this rulemaking would provide employers in the State-Plan states with procedures that would protect the safety and health of employees who use respirators against hazardous airborne substances in their workplace at least as well as the existing quantitative fit-testing protocols in appendix A of the Respiratory Protection Standard.
There are 28 states and U.S. territories that have their own OSHA-approved occupational safety and health programs called State Plans. The following 22 State Plans cover state and local government employers and private-sector employers: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. The following six State Plans cover state and local government employers only: Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin Islands.
OSHA reviewed this notice of proposed rulemaking according to the Unfunded Mandates Reform Act of 1995 (UMRA) 2 U.S.C. 1501-1507 and Executive Order 12875, 58 FR 58093 (1993). As discussed above in section B of this preamble (“Preliminary Economic Analysis and Regulatory Flexibility Certification”), OSHA preliminarily determined that the proposed rule imposes no additional costs on any private-sector or public-sector entity. The substantive content of the proposed rule applies only to employers whose employees use respirators for protection against airborne contaminants, and compliance with the protocols contained in the proposed rule would be strictly optional for these employers. Accordingly, the proposed rule would require no additional expenditures by either public or private employers. Therefore, this proposal is not a significant regulatory action within the meaning of Section 202 of the UMRA, 2 U.S.C. 1532.
As noted above under Section E (“State Plan States”) of this preamble, OSHA standards do not apply to state or local governments except in states that have voluntarily elected to adopt an OSHA-approved State Plan. Consequently, this notice of proposed rulemaking does not meet the definition of a “Federal intergovernmental mandate” (see 2 U.S.C. 658(5)). Therefore, for the purposes of the UMRA, the Assistant Secretary for Occupational Safety and Health certifies that this proposal does not mandate that state, local, or tribal governments adopt new, unfunded regulatory obligations, or increase expenditures by the private sector of more than $100 million in any year.
Section 6(b)(8) of the Act (29 U.S.C. 655(b(8)) requires OSHA to explain “why a rule promulgated by the Secretary differs substantially from an existing national consensus standard,” by publishing “a statement of the reasons why the rule as adopted will better effectuate the purposes of the Act than the national consensus standard.” In this regard, when OSHA promulgated its original respirator fit-testing protocols under appendix A of its final Respiratory Protection Standard (29 CFR 1910.134), no national consensus standards addressed these protocols. Later, the American National Standards Institute (ANSI) developed a national consensus standard on fit-testing protocols (“Respirator Fit Testing Methods,” ANSI Z88.10-2001) as an adjunct to its national consensus standard on respiratory protection programs. ANSI/AIHA updated the Z88.10 standard in 2010 (“Respirator Fit Testing Methods,” ANSI Z88.10-2010).
Paragraph 7.2 of ANSI/AIHA Z88.10-2010 specifies the requirements for conducting a particle-counting instrument (
The proposal to add two quantitative fit-test protocols to appendix A of OSHA's Respiratory Protection Standard would affect the construction industry because it revises the fit-testing procedures specified by the standard, which is applicable to the construction industry (see 29 CFR 1926.103). Whenever the Agency proposes a rule involving construction activities, the Contract Work Hours and Safety Standards Act (Construction Safety Act) (40 U.S.C. 3704), OSHA regulations governing the Advisory Committee for Construction Safety and Health (ACCSH) (
Fit testing, Hazardous substances, Health, Occupational safety and health, Respirators, Respiratory protection, Toxic substances.
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210 directed the preparation of this notice. Accordingly, the Agency issues this notice under the following authorities: 29 U.S.C. 663, 655 and 656, 40 U.S.C. 3701,
For the reasons stated in the preamble, the Agency proposes to amend 29 CFR part 1910 as follows:
29 U.S.C. 653, 655, 657; Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), or 1-2012 (77 FR 3912), as applicable, and 29 CFR part 1911.
The revisions and additions read as follows:
14. * * *
(a) Employers must perform the following test exercises for all fit testing methods prescribed in this appendix, except for the two modified CNC quantitative fit testing protocols, the CNP quantitative fit testing protocol, and the CNP REDON quantitative fit testing protocol. For the modified CNC quantitative fit testing protocols, employers shall ensure that the test subjects (
The ambient aerosol condensation nuclei counter (CNC) quantitative fit testing (PortaCount®) protocol quantitatively fit tests respirators with the use of a probe. The probed respirator is only used for quantitative fit tests. A probed respirator has a special sampling device, installed on the respirator, that allows the probe to sample the air from inside the mask. A probed respirator is required for each make, style, model, and size that the employer uses and can be obtained from the respirator manufacturer or distributor. The CNC instrument manufacturer, TSI Incorporated, also provides probe attachments (TSI mask sampling adapters) that permit fit testing in an employee's own respirator. A minimum fit factor pass level of at least 100 is necessary for a half-mask respirator (elastomeric or filtering facepiece), and a minimum fit factor pass level of at least 500 is required for a full facepiece elastomeric respirator. Two PortaCount® Respirator Fit Tester models are available. One model is used to fit test elastomeric respirators (
(a) When administering this protocol to test subjects, employers shall comply with the requirements specified in Part I.C.3 of this appendix (ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocol), except they shall use the test exercises described below in paragraph (b) of this protocol instead of the test exercises specified in section I.C.3(a)(6) of this appendix.
(b) Employers shall ensure that each test subject being fit tested using this protocol follows the exercise and duration procedures, including the order of administration, described below in Table A-1 of this appendix.
(a) When administering this protocol to test subjects, employers shall comply with the requirements specified in Part I.C.3 of this appendix (Ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocol), except they shall use the test exercises described below in paragraph (b) of this protocol instead of the test exercises specified in section I.C.3(a)(6) of this appendix.
(b) Employers shall ensure that each test subject being fit tested using this protocol follows the exercise and duration procedures, including the order of administration, described below in Table A-2 of this appendix.
(a) When administering this protocol to test subjects, employers must comply with the requirements specified in paragraphs (a) and (c) of part I.C.6 of this appendix (“Controlled negative pressure (CNP) quantitative fit testing protocol,”) as well as use the test exercises described below in paragraph (b) of this protocol instead of the test exercises specified in paragraph (b) of part I.C.6 of this appendix.
(b) Employers must ensure that each test subject being fit tested using this protocol follows the exercise and measurement procedures, including the order of administration described below in Table A-3 of this appendix.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve portions of State Implementation Plan (SIP) submittals from the State of Texas pertaining to Clean Air Act (CAA) section 110(a)(2)(J): Consultation with Government Officials, Public Notification, and Prevention of Significant Deterioration and Visibility Protection for the 2008 Ozone (O
Written comments should be received on or before November 7, 2016.
Submit your comments, identified by EPA-R06-OAR-2012-0953, at
Sherry Fuerst, (214) 665-6454,
In the final rules section of this
For additional information, see the direct final rule which is located in the rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the Texas State Implementation Plan (SIP). The revisions to the SIP were submitted in 2015. These revisions are related to the implementation of the state's motor vehicle emissions Inspection and Maintenance (I/M) Program. The EPA is proposing to approve these revisions pursuant to the Clean Air Act (CAA).
Written comments should be received on or before November 7, 2016.
Submit your comments, identified by EPA-R06-OAR-2015-0425, at
Mr. John Walser, (214) 665-7128,
In the final rules section of this
For additional information, see the direct final rule which is located in the rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) proposes to approve the State Implementation Plan (SIP) revisions submitted by the State of Nebraska. This proposed action will amend the SIP to include revisions to title 129 of the Nebraska Air Quality Regulations, chapter 5, “Operating Permits—When Required”; chapter 9, “General Operating Permits for Class I and II Sources”; chapter 22, “Incinerators; Emission Standards”; Chapter 30, “Open Fires”; and chapter 34 “Emission Sources; Testing; Monitoring”. These revisions were requested by the Nebraska Department of Environmental Quality (NDEQ) in three submittals, submitted on May 1,
Comments must be received by November 7, 2016.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2016-0555, to
Greg Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913-551-7391, or by email at
This document proposes to take action on the State Implementation Plan (SIP) revisions submitted by the State of Nebraska. We have published a direct final rule approving the State's SIP revision(s) in the “Rules and Regulations” section of this
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA) and Department of Defense (DoD).
Proposed rule.
The U.S. Environmental Protection Agency (EPA) and the U.S. Department of Defense (DoD) propose discharge performance standards for 11 discharges incidental to the normal operation of a vessel of the Armed Forces into the navigable waters of the United States, the territorial seas, and the contiguous zone. When implemented, the proposed discharge performance standards would reduce the adverse environmental impacts associated with the vessel discharges, stimulate the development of improved vessel pollution control devices, and advance the development of environmentally sound vessels of the Armed Forces. The 11 discharges addressed by the proposed rule are the following: catapult water brake tank and post-launch retraction exhaust, controllable pitch propeller hydraulic fluid, deck runoff, firemain systems, graywater, hull coating leachate, motor gasoline and compensating discharge, sonar dome discharge, submarine bilgewater, surface vessel bilgewater/oil-water separator effluent, and underwater ship husbandry.
Comments must be received on or before December 6, 2016.
Submit your comments, identified by Docket No. EPA-HQ-OW-2016-0351, at
Katherine B. Weiler, Marine Pollution Control Branch (4504T), U.S. EPA, 1200 Pennsylvania Avenue NW., Washington, DC 20460; (202) 566-1280;
This supplementary information is organized as follows:
The EPA and DoD propose this rule under the authority of Clean Water Act (CWA) section 312 (33 U.S.C. 1322). Section 325 of the National Defense Authorization Act of 1996 (“NDAA”), entitled “Discharges from Vessels of the Armed Forces” (Pub. L. 104-106, 110 Stat. 254), amended CWA section 312, to require the Administrator of the U.S. Environmental Protection Agency (Administrator) and the Secretary of Defense of the U.S. Department of Defense (Secretary) to develop uniform national standards to control certain discharges incidental to the normal operation of a vessel of the Armed Forces. The term Uniform National Discharge Standards or UNDS is used in this preamble to refer to the provisions in CWA section 312(a)(12) through (14) and (n) (33 U.S.C. 1322(a)(12) through (14) and (n)).
UNDS are intended to enhance the operational flexibility of vessels of the Armed Forces domestically and internationally, stimulate the development of innovative vessel pollution control technology, and advance the development of environmentally sound ships. Section 312(n)(3)(A) of the CWA requires the EPA and DoD to promulgate uniform national discharge standards for certain discharges incidental to the normal operation of a vessel of the Armed Forces (CWA section 312(a)(12)), unless the Secretary finds that compliance with UNDS would not be in the national security interests of the United States (CWA section 312(n)(1)).
The proposed rule would amend title 40 Code of Federal Regulations (CFR) part 1700 to establish discharge performance standards for 11 discharges incidental to the normal operation of a vessel of the Armed Forces from among the 25 discharges for which the EPA and DoD previously determined (64 FR 25126, May 10, 1999) that it is reasonable and practicable to require a marine pollution control device (MPCD). The 11 discharges addressed by the proposal are the following: Catapult water brake tank and post-launch retraction exhaust, controllable pitch propeller hydraulic fluid, deck runoff, firemain systems, graywater, hull coating leachate, motor gasoline and compensating discharge, sonar dome discharge, submarine bilgewater, surface vessel bilgewater/oil-water separator effluent, and underwater ship husbandry.
The proposed discharge performance standards would not become enforceable until after promulgation of a final rule, as well as promulgation of regulations by DoD under CWA section 312(n)(5)(C) to govern the design, construction, installation, and use of a MPCD.
UNDS do not apply to the following discharges from vessels of the Armed Forces: Overboard discharges of rubbish, trash, garbage, or other such materials; sewage; air emissions resulting from the operation of a vessel propulsion system, motor-driven equipment, or incinerator; or discharges that require permitting under the National Pollutant Discharge Elimination System (NPDES) program, including operational discharges and other discharges that are not incidental to the normal operation of a vessel of the Armed Forces.
The proposed rule would apply to vessels of the Armed Forces. For the purposes of the rulemaking, the term “vessel of the Armed Forces” is defined at CWA section 312(a)(14). Vessel of the Armed Forces means any vessel owned or operated by the U.S. Department of Defense (
The proposed rule would be applicable to discharges from a vessel of the Armed Forces operating in the navigable waters of the United States, territorial seas, and the contiguous zone (CWA section 1322(n)(8)(A)). The proposed rule applies in both fresh and marine waters and can include bodies of water such as rivers, lakes, and oceans. Together, the preamble refers to these waters as “waters subject to UNDS.”
Sections 502(7), 502(8), and 502(9) of the CWA define the term “navigable waters,” “territorial seas,” and “contiguous zone,” respectively. The term “navigable waters” means waters of the United States including the territorial seas, where the United States includes the states, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territories of the Pacific Islands. The term “territorial seas” means the belt of seas that generally extends three miles seaward from the line of ordinary low water along the portion of the coast in direct contact with the open sea and the line marking the seaward limit of inland waters. The term “contiguous zone” means the entire zone established or to be established by the United States under Article 24 of the
The UNDS rulemaking is a joint rulemaking between the EPA and DoD and is under development in three phases. The first two phases reflect joint rulemaking between the EPA and DoD; the third phase is a DoD-only rule.
The EPA and DoD promulgated the Phase I regulations on May 10, 1999 (64 FR 25126), and these existing regulations are codified at 40 CFR part 1700. During Phase I, the EPA and DoD identified the discharges incidental to the normal operation of a vessel of the Armed Forces for which it is reasonable and practicable to require control with a MPCD to mitigate potential adverse impacts on the marine environment (CWA section 312(n)(2)), as well as those discharges for which it is not. Section 312(a)(13) of the CWA defines a MPCD as any equipment or management practice, for installation or use on a vessel of the Armed Forces, that is designed to receive, retain, treat, control, or discharge a discharge incidental to the normal operation of a vessel; and determined by the Administrator and the Secretary to be the most effective equipment or management practice to reduce the environmental impacts of the discharge consistent with the considerations set forth by UNDS.
During Phase I, the EPA and DoD identified the following 25 discharges as requiring control with a MPCD: Aqueous Film-Forming Foam; Catapult Water Brake Tank and Post-Launch Retraction Exhaust; Chain Locker Effluent; Clean Ballast; Compensated Fuel Ballast; Controllable Pitch Propeller Hydraulic Fluid; Deck Runoff; Dirty Ballast; Distillation and Reverse Osmosis Brine; Elevator Pit Effluent; Firemain Systems; Gas Turbine Water Wash; Graywater; Hull Coating Leachate; Motor Gasoline and Compensating Discharge; Non-Oily Machinery Wastewater; Photographic Laboratory Drains; Seawater Cooling Overboard Discharge; Seawater Piping Biofouling Prevention; Small Boat Engine Wet Exhaust; Sonar Dome Discharge; Submarine Bilgewater; Surface Vessel Bilgewater/Oil-Water Separator Effluent; Underwater Ship Husbandry; and Welldeck Discharges (40 CFR 1700.4).
During Phase I, the EPA and DoD identified the following 14 discharges as not requiring control with a MPCD: Boiler Blowdown; Catapult Wet Accumulator Discharge; Cathodic Protection; Freshwater Layup; Mine Countermeasures Equipment Lubrication; Portable Damage Control Drain Pump Discharge; Portable Damage Control Drain Pump Wet Exhaust; Refrigeration/Air Conditioning Condensate; Rudder Bearing Lubrication; Steam Condensate; Stern Tube Seals and Underwater Bearing Lubrication; Submarine Acoustic Countermeasures Launcher Discharge; Submarine Emergency Diesel Engine Wet Exhaust; and Submarine Outboard Equipment Grease and External Hydraulics.
As of the effective date of the Phase I rule (June 9, 1999), neither states nor political subdivisions of states may adopt or enforce any state or local statutes or regulations with respect to the 14 discharges that were identified as not requiring control, except to establish no-discharge zones (CWA sections 312(n)(6)(A) and 312(n)(7)). However, section 312(n)(5)(D) of the CWA authorizes a Governor of any state to submit a petition to DoD and the EPA requesting the re-evaluation of a prior determination that a MPCD is required for a particular discharge (40 CFR 1700.4) or that a MPCD is not required for a particular discharge (40 CFR 1700.5), if there is significant new information not considered previously, that could reasonably result in a change to the determination (CWA section 312(n)(5)(D) and 40 CFR 1700.11).
Section 312(n)(3) of the CWA provides for Phase II and requires the EPA and DoD to develop federal discharge performance standards for each of the 25 discharges identified in Phase I as requiring control. In doing so, the EPA and DoD are required to consult with the Department in which the U.S. Coast Guard is operating, the Secretary of Commerce, interested states, the Secretary of State, and other interested federal agencies. In promulgating Phase II discharge performance standards, CWA section 312(n)(2)(B) directs the EPA and DoD to consider seven factors: The nature of the discharge; the environmental effects of the discharge; the practicability of using the MPCD; the effect that installation or use of the MPCD would have on the operation or the operational capability of the vessel; applicable U.S. law; applicable international standards; and the economic costs of installation and use of the MPCD. Section 312(n)(3)(C) of the CWA further provides that the EPA and DoD may establish discharge standards that (1) distinguish among classes, types, and sizes of vessels; (2) distinguish between new and existing vessels; and (3) provide for a waiver of applicability of standards as necessary or appropriate to a particular class, type, age, or size of vessel.
The EPA and DoD developed a process to establish the Phase II discharge performance standards in three batches (three separate rulemakings). The first batch of discharge performance standards was published on February 3, 2014 (79 FR 6117) and addressed 11 of the 25 discharges identified as requiring control (64 FR 25126). The second batch of discharge performance standards, the subject of this proposed rule, addresses 11 additional discharges identified as requiring control (64 FR 25126). The third batch of discharge performance standards that will address the remaining three discharges will be proposed in a separate rule.
In developing the Phase II discharge performance standards, the EPA and DoD reference the 2013 NPDES Vessel General Permit and the 2014 NPDES Small Vessel General Permit (hereinafter
Using the NPDES VGPs as a baseline for developing the performance standards for discharges incidental to the normal operation of a vessel of the Armed Forces allowed the EPA and DoD to maximize the use of the EPA's scientific and technical work developed to support the NPDES VGPs. The NPDES VGPs technology-based and water quality-based effluent limitations were then adapted, as appropriate, for the relevant discharges from vessels of the Armed Forces.
Phase III of UNDS requires DoD, in consultation with the EPA and the Secretary of the Department in which the U.S. Coast Guard is operating, within one year of finalization of the Phase II standards, to promulgate regulations governing the design, construction, installation, and use of MPCDs necessary to meet the discharge performance standards. DoD will implement the Phase III regulations under the authority of the Secretary as a DoD publication. The Phase III regulations will be publicly released and are expected to be made available on the Defense Technical Information Center Web site:
Following the effective date of regulations under Phase III, it will be unlawful for a vessel of the Armed Forces to operate within waters subject to UNDS if the vessel is not equipped with a MPCD that meets the final Phase II standards (CWA section 312 (n)(7)). It also will be unlawful for a vessel of the Armed Forces to discharge a regulated UNDS discharge into an UNDS no-discharge zone (
In addition, as of the effective date of the Phase III regulations, neither States nor political subdivisions of States may adopt or enforce any state or local statute or regulation with respect to discharges identified as requiring control, except to establish no-discharge zones (CWA section 312(n)(7)). CWA section 312(n)(7) provides for the establishment of no-discharge zones either (1) by State prohibition after application and a determination by the EPA, or (2) directly by EPA prohibition. The Phase I UNDS regulations established the criteria and procedures for establishing UNDS no-discharge zones (40 CFR 1700.9 and 40 CFR 1700.10).
If a state determines that the protection and enhancement of the quality of some or all of its waters require greater environmental protection, the state may prohibit one or more discharges incidental to the normal operation of a vessel of the Armed Forces, whether treated or not, into those waters (40 CFR 1700.9). A state prohibition does not apply until after the Administrator determines that (1) the protection and enhancement of the quality of the specified waters within the state require a prohibition of the discharge into the waters; (2) adequate facilities for the safe and sanitary removal of the discharge incidental to the normal operation of a vessel are reasonably available for the waters to which the prohibition would apply; and (3) the prohibition will not have the effect of discriminating against a vessel of the Armed Forces by reason of the ownership or operation by the federal government, or the military function, of the vessel (40 CFR 1700.9(b)(2)).
Alternatively, a State may request that the EPA prohibit, by regulation, the discharge of one or more discharges incidental to the normal operation of a vessel of the Armed Forces, whether treated or not, into specified waters within a state (40 CFR 1700.10). In this case, the EPA would make a determination that the protection and enhancement of the quality of the specified waters requires a prohibition of the discharge. As with the application of a state prohibition described above, the Administrator would need to determine that (1) the protection and enhancement of the quality of the specified waters within the state require a prohibition of the discharge into the waters; (2) adequate facilities for the safe and sanitary removal of the discharge incidental to the normal operation of a vessel are reasonably available for the waters to which the prohibition would apply; and (3) the prohibition will not have the effect of discriminating against a vessel of the Armed Forces by reason of the ownership or operation by the federal government, or the military function, of the vessel (40 CFR 1700.9(b)(2)). The EPA may not, however, disapprove a state application for this latter type of prohibition for the sole reason that there are not adequate facilities for the safe and sanitary removal of such discharges (CWA section 312(n)(7)(B)(ii) and 40 CFR 1700.10(b)).
The statute also requires the EPA and DoD to review the determinations and standards every five years and, if necessary, to revise them based on significant new information. Specifically, CWA section 312(n)(5)(A) and (B) contain provisions for reviewing and modifying both of the following determinations: (1) Whether control should be required for a particular discharge, and (2) the substantive standard of performance for a discharge for which control is required. A Governor also may petition the Administrator and the Secretary to review a UNDS determination or standard if there is significant new information, not considered previously, that could reasonably result in a change
During the development of the proposed rule, the EPA and DoD consulted with other federal agencies, states, and tribes regarding the reduction of adverse environmental impacts associated with discharges from vessels of the Armed Forces; development of innovative vessel pollution control technology; and advancement of environmentally sound vessels of the Armed Forces. In addition, the EPA and DoD reviewed comments on the NPDES VGPs.
The proposed rule is supported by “Technical Development Document (TDD) Phase I Uniform National Discharge Standards (UNDS) for Vessels of the Armed Forces,” the UNDS Phase I rules, the “Final 2013 Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels (VGP),” the “Vessel General Permit (VGP) Fact Sheet,” the “Final Small Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels Less Than 79 Feet (sVGP),” the “Small Vessel General Permit (sVGP) Fact Sheet,” the “Economics and Benefits Analysis of the Final 2013 Vessel General Permit (VGP),” the “Economics and Benefits Analysis of the Final 2013 Small Vessel General Permit (sVGP),” the “February 2014 Uniform National Discharge Standards for Vessels of the Armed Forces—Phase II,” the “Report to Congress: Study of Discharges Incidental to Normal Operation of Commercial Fishing Vessels and Other Non-Recreational Vessels Less than 79 Feet,” and the “Environmentally Acceptable Lubricants.” These documents are available from the EPA Water Docket, Docket No. EPA-HQ-OW-2016-0351 (Email:
The public may submit comments in written or electronic form. Electronic comments must be identified by the docket number EPA-HQ-OW-2016-0351. These electronic submissions will be accepted in Microsoft Word or Adobe PDF. If your comment cannot be read due to technical difficulties and you cannot be contacted for clarification, the EPA and DoD may not be able to consider your comment. Avoid the use of special characters and any form of encryption.
1. Identify the proposed rule by docket number and other identifying information (subject heading,
2. Explain why you agree or disagree with any proposed discharge performance standards; suggest alternatives and substitute language for your requested changes.
3. Describe any assumptions and provide any technical information or data that you used.
4. Provide specific examples to illustrate your concerns and suggest alternatives.
5. Explain your views as clearly as possible.
Make sure to submit your comments by the comment period deadline. The EPA and DoD are not obligated to accept or consider late comments.
During the development of the proposed discharge performance standards, the EPA and DoD analyzed the information from the Phase I of UNDS, considered the relevant language in the NPDES VGPs effluent limitations, and took into the consideration the seven statutory factors listed in CWA section 312(n)(2)(B). These seven statutory factors are: The nature of the discharge; the environmental effects of the discharge; the practicability of using the MPCD; the effect that installation or use of the MPCD would have on the operation or operational capability of the vessel; applicable U.S. law; applicable international standards; and the economic costs of the installation and use of the MPCD. The EPA and DoD determined that the NPDES VGPs effluent limitations, which include technology-based and water quality-based effluent limitations, provide a sound basis to serve as a baseline for developing the discharge performance standards for the 11 discharges in this proposed rule. The subsections below outline the EPA and DoD's approach to considering the seven statutory factors listed in CWA section 312(n)(2)(B).
During Phase I, the EPA and DoD gathered information on the discharges incidental to the normal operation of a vessel of the Armed Forces and developed nature of the discharge reports. The nature of the discharge reports discuss how the discharge is generated, volumes and frequencies of the generated discharge, where the discharge occurs, and the constituents present in the discharge. In addition, the EPA and DoD reviewed relevant discharge information in the supporting documentation of the NPDES VGPs. The EPA and DoD briefly describe the nature of each of the 11 discharges below; however, the complete nature of the discharge reports can be found in Appendix A of the Technical Development Document—EPA 821-R-99-001.
Discharges incidental to the normal operation of a vessel of the Armed Forces have the potential to negatively impact the aquatic environment. The discharges contain a wide variety of constituents that have the potential to negatively impact aquatic species and habitats. These discharges can cause thermal pollution and can contain aquatic nuisance species (ANS), nutrients, bacteria or pathogens (
The universe of vessels of the Armed Forces affected by the proposed rule encompasses more than 6,000 vessels distributed among the U.S. Navy, Military Sealift Command, U.S. Coast Guard, U.S. Army, U.S. Marine Corps, and U.S. Air Force. These vessels range
The EPA and DoD assessed the relative costs, practicability, and operational impacts of the proposed rule by comparing current operating conditions and practices of vessels of the Armed Forces with the anticipated operating conditions and practices that would be required to meet the proposed discharge performance standards. The EPA and DoD determined that the proposed discharge performance standards applicable to operating conditions and practices for the 11 discharges would only result in a marginal increase in performance costs, practicability, and operational impacts.
The EPA and DoD reviewed U.S. laws and international standards that would be relevant to discharges incidental to the normal operation of a vessel of the Armed Forces. A number of U.S. environmental laws include specific provisions for federal facilities and properties that may result in different environmental requirements for federal and non-federal entities. Similarly, many international treaties do not apply to vessels of the Armed Forces either because vessels of the Armed Forces are entitled to sovereign immunity under international law or because any particular treaty may apply different approaches to the adoption of appropriate environmental control measures consistent with the objects and purposes of such treaties. The EPA and DoD incorporated any relevant information in the development of the proposed discharge standards after reviewing the requirements of the following treaties and domestic implementing legislation, as well as other relevant and potentially applicable U.S. environmental laws: International Convention for the Prevention of Pollution from Ships (also referred to as MARPOL); International Convention on the Control of Harmful Anti-Fouling Systems on Ships; Act to Prevent Pollution from Ships; CWA section 311, as amended by the Oil Pollution Control Act of 1990; CWA section 402 and the National Pollutant Discharge Elimination System Vessel General Permit and small Vessel General Permit; Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA); Hazardous Materials Transportation Act; Title X of the Coast Guard Authorization Act of 2010; National Marine Sanctuaries Act; Antiquities Act of 1906; Resource Conservation and Recovery Act; Toxic Substances Control Act; and the St. Lawrence Seaway Regulations. The EPA and DoD invite comment on the application of the laws and international standards considered in the development of the proposed discharge performance standards.
The EPA and DoD propose adding UNDS definitions to 40 CFR part 1700. Specifically, the proposal would establish new definitions or revise proposed definitions found in UNDS Phase II Batch One (79 FR 6117, February 3, 2014) for the following terms: Bioaccumulative; Biodegradable; environmentally acceptable lubricants; Great Lakes; minimally-toxic; minimally-toxic soaps, cleaners, and detergents; not bioaccumulative; phosphate free soaps, cleaners, and detergents; and state. The EPA and DoD propose defining these terms in order to support the proposal of the discharge performance standards described in the following section. These definitions are intended to clarify, simplify, or improve understanding of the proposed discharge performance standards. Some of the definitions are slightly different from the definitions established under the NPDES VGPs in order to increase clarity and understanding. The EPA and DoD invite comment on these definitions as applied to the specific proposed discharge performance standards for vessels of the Armed Forces.
This section describes the nature of the discharge, the environmental effects of the discharge, and the proposed discharge performance standards determined to be reasonable and practicable to mitigate the adverse impacts to the marine environment for the 11 discharges. In developing these standards, the EPA and DoD considered the information from Phase I of UNDS, Phase II of UNDS, the NPDES VGPs effluent limitations, and the seven statutory factors listed in CWA section 312(n)(2)(B). For more information on each discharge included in this proposed rule, please see the Phase I Uniform National Discharge Standards for Vessels of the Armed Forces: Technical Development Document; EPA 821-R-99-001.
The 11 proposed discharge performance standards described in each section below apply to vessels of the Armed Forces operating within waters subject to UNDS, except as otherwise expressly excluded in the “exceptions” in 40 CFR 1700.39. In addition, if two or more regulated discharge streams are combined prior to discharge, then the resulting discharge would need to meet the discharge performance standards applicable to each of the discharges that are being combined (40 CFR 1700.40). Furthermore, recordkeeping (40 CFR 1700.41) and non-compliance reporting (40 CFR 1700.42) apply generally to each proposed discharge performance standard unless expressly provided in a particular discharge performance standard.
Catapult water brake tank and post-launch retraction exhaust is the oily water skimmed from the water brake tank and the condensed steam discharged during catapult operations. Catapult water brakes stop the forward motion of an aircraft carrier catapult system used to launch various aircraft from Navy aircraft carriers. In waters subject to UNDS, the catapult water brake is primarily used for testing catapults on recently constructed aircraft carriers, following major drydock overhauls, or after major catapult modifications. Most flight operations occur outside of waters subject to UNDS. The catapult water brake tank serves as the water supply for the catapult water brake system. During each aircraft launch or test, lubricating oil is introduced to the catapult water brake tank by the catapult pistons; as the water is recirculated through the catapult water brake and the water brake tank, oil accumulates in the tank. The testing alone of the catapult water brake does not generate a sufficient accumulation of oily water in the catapult water brake tank to generate a discharge. However, during flight operations the oily water from the catapult water brake tank is discharged above the waterline.
During the post-launch retraction of the catapult piston, the condensed
Only Navy aircraft carriers, which represent less than one percent of vessels of the Armed Forces, are likely to produce catapult water brake tank and post-launch retraction exhaust discharge.
For more information regarding catapult water brake tank and post-launch retraction exhaust discharge, please see the catapult water brake tank and post-launch retraction exhaust nature of the discharge report in Appendix A of the Technical Development Document—EPA 821-R-99-001.
The catapult water brake tank and post-launch retraction exhaust discharges could negatively impact receiving waters due to the presence of lubricating oil and small amounts of metals generated within the catapult system itself. Additionally, the post-launch retraction exhaust discharge contains oil and water (in the condensed steam), nitrogen (in the form of ammonia, nitrates and nitrites, and total nitrogen), and metals such as copper and nickel from the piping systems. Among the constituents, oil, copper, lead, nickel, nitrogen, ammonia, bis(2-ethylhexyl) phthalate, phosphorus, and benzidine could be present in concentrations that exceed the EPA recommended water quality criteria.
Prohibiting the discharge of catapult water brake tank effluent and limiting the number of post-launch retraction exhaust discharges to only those required to support necessary testing and training operations would significantly limit the potential for release of the associated constituents of concern and protect the quality of the receiving waters.
The EPA and DoD propose to prohibit the discharge of catapult water brake tank effluent and to minimize post-launch retraction exhaust discharges by limiting the number of launches required to test and validate the system and conduct qualification and operational training.
Controllable pitch propeller (CPP) hydraulic fluid is the hydraulic fluid that discharges into the receiving waters from propeller seals as part of normal operation, and the hydraulic fluid released during routine maintenance of the propellers. CPPs are used to control a vessel's speed or direction while maintaining a constant propulsion plant output (
Leakage through CPP seals is most likely to occur while the vessel is underway because the CPP system operates under higher pressure when underway than at pierside or at anchor. CPP assemblies are typically designed to operate at 400 pounds per square inch (psi) without leaking. Typical CPP internal pressures while pierside range from 6 to 8 psi. CPP seals are designed to last five to seven years, which is the longest period between scheduled dry-dock cycles, and are inspected quarterly for damage or excessive wear. As a result of the hub design and frequent CPP seal inspections, leaks of hydraulic fluid from CPP hubs are expected to be negligible.
CPP blade maintenance or replacement, which occurs in port on an as-needed basis when dry-docking is unavailable or impractical, also might result in the discharge of hydraulic fluid.
U.S. Coast Guard patrol ships, Navy surface combatants and some amphibious support ships, and some Military Sealift Command auxiliary ships might produce this discharge. Those ships represent approximately five percent of the vessels of the Armed Forces.
For more information regarding discharges from CPP systems, please see the CPP hydraulic fluid nature of the discharge report in Appendix A of the Technical Development Document— EPA 821-R-99-001.
The amount of hydraulic fluid released during underwater CPP maintenance could cause a sheen in the receiving waters. Constituents of the discharge include paraffins, olefins, and metals such as copper, aluminum, tin, nickel, and lead. Metal concentrations are expected to be insignificant because hydraulic fluid is not corrosive to metal piping, and the hydraulic fluid is continually filtered to protect against system failures. The use of shore facilities for CPP maintenance activities when possible would reduce the discharge of hydraulic fluid. The use of spill containment measures would minimize any adverse environmental effects, should the release of oil occur. Reducing the likelihood of discharge of CPP hydraulic fluid and the associated constituents of concern would protect the quality of the receiving waters.
The EPA and DoD propose to require that the protective seals on CPPs be maintained in good operating order to minimize the leakage of hydraulic fluid. To the greatest extent practicable, maintenance activities on CPPs should be conducted when a vessel is in drydock. If maintenance and repair activities must occur when the vessel is not in drydock, appropriate spill response equipment (
Deck runoff is an intermittent discharge generated from precipitation, freshwater washdowns, wave action, or seawater spray falling on the weather deck or the flight deck that is discharged overboard through deck openings. Deck runoff contains any residues that may be present on the deck surface.
Residues and contaminants present on the deck originate from topside equipment components as well as the varied activities that take place on the deck. Some or all of these pollutants can be introduced to the deck from shipboard activities, storage of material on the deck, maintenance activities, and
All vessels of the Armed Forces generate deck runoff and the discharge occurs whenever the deck surface is exposed to water. Only vessels of the Armed Forces that support flight operations have flight decks. The proposed standards distinguish between flight decks and other vessel decks.
For more information regarding deck runoff, please see the deck runoff nature of the discharge report in Appendix A of the Technical Development Document—EPA 821-R-99-001.
Deck runoff could negatively impact receiving waters due to the possible presence of oil and grease, petroleum hydrocarbons, surfactants, soaps and detergents, glycols, solvents, and metals. These constituents may be present in concentrations that could potentially contribute to an exceedance of the EPA recommended water quality criteria. Existing DoD management practices provide for the clean-up of oil and other substances spilled during routine maintenance. These practices reduce the environmental effects of the discharge. Prohibiting the washdown of flight decks and restricting the discharge of deck runoff and the associated constituents of concern would protect the quality of the receiving waters.
The EPA and DoD propose to require that vessels prohibit flight deck washdowns and minimize deck washdowns while in port and in federally-protected-waters. Additionally, before deck washdowns occur, exposed decks must be broom cleaned and on-deck debris, garbage, paint chips, residues, and spills must be removed, collected, and disposed of onshore in accordance with any applicable solid waste or hazardous waste management and disposal requirements. If a deck washdown or above water line hull cleaning would create a discharge, the washdown or above water line cleaning must be conducted with minimally-toxic and phosphate free soaps, cleaners, and detergents. The use of soaps that are labeled as toxic is prohibited. All soaps and cleaners must be used as directed by the label. Furthermore, soaps, cleaners, and detergents should not be caustic and must be biodegradable. Where feasible, machinery on deck must have coamings or drip pans where necessary to collect any oily discharge that may leak from machinery and prevent spills. The drip pans must be drained to a waste container for proper disposal onshore in accordance with any applicable oil and hazardous substance management and disposal requirements. The presence of floating solids, visible foam, halogenated phenol compounds, and dispersants and surfactants in deck washdowns must be minimized. Topside surfaces and other above-water-line portions of the vessel must be well-maintained to minimize the discharge of rust and other corrosion by-products, cleaning compounds, paint chips, non-skid material fragments, and other materials associated with exterior topside surface preservation. Residual paint droplets entering the water must be minimized when conducting maintenance painting. The discharge of unused paint is prohibited. Paint chips and unused paint residues must be collected and disposed of onshore in accordance with applicable solid waste and hazardous substance management and disposal requirements. When vessels conduct underway fuel replenishment, scuppers must be plugged to prevent the discharge of oil. Any oil spilled must be cleaned, managed, and disposed of onshore in accordance with any applicable onshore oil and hazardous substance management and disposal requirements.
Firemain system discharges consist of the surrounding water pumped through the firemain system for testing, maintenance, and training, as well as secondary uses for the operation of certain vessel systems. Firemain systems are essential to the safety of a vessel and crew and therefore, require testing and maintenance. The firefighting equipment served by a vessel's firemain system includes fire hose stations, seawater sprinkling systems, and foam proportioning stations. Any foam discharges associated with firemain systems are not covered under this performance standard but would need to meet the requirements of 40 CFR 1700.14 (aqueous film-forming foam). The secondary uses of wet firemain systems may include deck washdowns, cooling water for auxiliary machinery, eductors, ship stabilization and ballast tank filling, and flushing for urinals, commodes, firemain loop recirculation, and pulpers.
Firemain systems for vessels of the Armed Forces fall into two categories: Wet and dry firemains. Wet firemains are continuously pressurized so that the system has the capacity to provide water immediately upon demand. Dry firemains are not charged with water and, as a result, do not supply water upon demand. Most Navy surface vessels operate wet firemains and most Military Sealift Command vessels, U.S. Coast Guard, and U.S. Army vessels use dry firemains.
The firemain system includes all components between the fire pump suction sea chest and the cutout valves to the various services including sea chests, fire pumps, valves, piping, fire hoses, and heat exchangers. The water passed through the firemain system is drawn from the sea and returned to the sea by either discharge over the side from fire hoses or through submerged pipe outlets. The seawater discharged overboard from the firemain system can contain entrained or dissolved materials, principally metals, from natural degradation of the internal components of the firemain system itself. Some traces of oil or other lubricants may also enter the seawater from valves or pumps. If the firemain system is used for a secondary use and a performance standard does not exist for that secondary use, then the performance standard for the firemain system applies.
Most vessels of the Armed Forces greater than or equal to 79 feet in length are expected to discharge from firemain systems. Most boats and service craft that are less than 79 feet in length do not generate firemain systems discharge because smaller boats and craft typically use portable fire pumps or fire extinguishers. Approximately 20 percent of vessels of the Armed Forces produce firemain systems discharge.
For more information regarding firemain systems, please see the firemain systems nature of the discharge report in Appendix A of the Technical Development Document—EPA 821-R-99-001.
Discharges from the firemain system could negatively impact receiving waters due to the possible presence of copper, zinc, nickel, aluminum, tin, silver, iron, titanium, and chromium. Many of these constituents can be traced to the corrosion and erosion of the firemain piping system, valves, or pumps. Consequently, when feasible, the maintenance and training discharges from the firemain should occur outside
Firemain systems may be discharged for testing and inspections of the firemain system. The EPA and DoD propose to require that to the greatest extent practicable, firemain system maintenance and training be conducted outside of port and as far away from shore as possible. In addition, firemain systems must not be discharged in federally-protected waters except when needed to comply with anchor washdown requirements in Subpart 1700.16 (Chain locker effluent). Firemain systems may be used for secondary uses if the intake comes directly from the surrounding waters or potable water supplies.
Graywater is galley, bath, and shower water, as well as wastewater from lavatory sinks, laundry, interior deck drains, water fountains, and shop sinks. On vessels of the Armed Forces, graywater is distinct from blackwater. Blackwater is the sewage generated by toilets and urinals and is regulated separately. Graywater discharges can contain oil and grease, detergent and soap residue, bacteria, pathogens, metals (
Vessels of the Armed Forces have different methods for collecting and discharging graywater. Most vessels are designed to direct graywater to the vessel's sewage tanks while pierside for transfer to a shore-based treatment facility. These vessels are not generally designed to hold graywater for extended periods of time and must drain or pump their graywater overboard while operating away from the pier in order to preserve holding capacity for sewage tanks. Some vessels with either larger graywater holding capacity or U.S. Coast Guard-certified marine sanitation devices (MSDs) have the capacity to hold or treat graywater for longer periods of time.
Approximately 20 percent of the vessels of the Armed Forces (
For more information regarding graywater, please see the graywater nature of the discharge in Appendix A of the Technical Development Document—EPA 821-R-99-001.
Graywater discharges may contain soaps and detergents; oil and grease from foods; food residue; nutrients and oxygen demand from food residues and detergents; hair; bleach and other cleaners and disinfectants; pathogens; and a variety of additional personal care products such as moisturizer, deodorant, perfume, and cosmetics. Graywater discharge could negatively impact receiving waters due to the possible presence of bacteria, pathogens, oil and grease, detergent and soap residue, metals (
The EPA and DoD propose to require that large quantities of cooking oils (
For vessels designed with the capacity to hold graywater, EPA and DoD propose to require that graywater must not be discharged in federally-protected waters or the Great Lakes. In addition, such vessels would be prohibited from discharging graywater within one mile of shore if an onshore facility is available and use of such a facility is reasonable and practicable. When an onshore facility is either not available or when use of such a facility is not reasonable and practicable, production and discharge of graywater must be minimized within one mile of shore.
For vessels that do not have the capacity to hold graywater, EPA and DoD propose to require that graywater production must be minimized in federally-protected waters or the Great Lakes. In addition, such vessels would be prohibited from discharging graywater within one mile of shore if an onshore facility is available and use of such a facility is reasonable and practicable. When an onshore facility is either not available or use of such a facility is not reasonable and practicable, production and discharge of graywater must be minimized within one mile of shore.
Hull coating leachate is defined as the constituents that leach, dissolve, ablate, or erode from the paint on the vessel hull into the surrounding seawater. Antifouling hull coatings are often used on vessel hulls to prevent or inhibit the attachment and growth of aquatic life or biofouling and contain biocides which are used to prevent biofouling growth on the hull by continuous leaching of biocides into the surrounding water. The primary biocide in most antifouling hull coatings is copper, although zinc is also used. Copper ablative coatings, which are designed to wear or ablate away as a result of water flow over a hull, and vinyl antifouling hull coatings, which release copper as a result of copper leaching and hydrolysis of rosin particles, are the most predominantly used copper-containing coatings. Tributyltin (TBT)-based coatings were historically used on vessel hulls; however, antifouling coatings with organotin (
Approximately 50 percent of the vessels of the Armed Forces use antifouling hull coatings and contribute to the hull coating leachate discharge when they are waterborne.
For more information regarding hull coating leachate, please see the hull coating leachate nature of the discharge report in Appendix A of the Technical Development Document—EPA 821-R-99-001.
The discharge of hull coating leachate could negatively impact receiving waters due to the presence of copper and zinc that are used as biocides. While the rate at which the metals leach from coatings is relatively slow (4-17 micrograms per square centimeter-day (μg/cm
The EPA and DoD propose to require that antifouling hull coatings subject to FIFRA (7 U.S.C 136
Motor gasoline and compensating discharge is the seawater taken into, and discharged from, motor gasoline tanks to eliminate free space where vapors could accumulate. Seawater, which is less buoyant than gasoline, occupies the free space to prevent potentially explosive gasoline vapors from forming. The retained seawater is then discharged when the vessel refills the tanks with gasoline in port or when performing maintenance. Motor gasoline and compensating effluent is likely to contain residual oils and soluble traces of gasoline components and additives, as well as metals. Only U.S. Navy amphibious support ships, which represent less than one percent of the vessels of the Armed Forces, produce motor gasoline and compensating discharge.
For more information regarding motor gasoline and compensating discharge, please see the motor gasoline and compensating discharge nature of the discharge in Appendix A of the Technical Development Document—EPA 821-R-99-001.
Motor gasoline and compensating discharge could negatively impact receiving waters due to the presence of residual oil. The discharge may contain traces of gasoline constituents, which generally contain alkanes, alkenes, aromatics (
The EPA and DoD propose to require that the discharge of motor gasoline and compensating effluent must not contain oil in quantities that: Cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines; or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines; or contain an oil content above 15 ppm as measured by the EPA Method 1664a or other appropriate method for determination of oil content as accepted by the IMO (
Sonar dome discharge occurs from the leaching of antifouling materials into the surrounding seawater and the release of seawater or freshwater retained within the sonar dome. Sonar domes are structures located on the hull of ships and submarines, used for the housing of electronic equipment for detection, navigation, and ranging. The shape and design pressure in sonar domes are maintained by filling them with water. Antifouling materials are used on the exterior of the sonar dome to prevent fouling which degrades sonar performance. Navy surface ship domes are made of rubber with an exterior layer that is impregnated with TBT. On submarines and Military Sealift Command surface ships, the sonar domes are made of steel or glass reinforced plastic and do not contain TBT but are covered with an antifouling coating.
The discharge of the water from the interior of the sonar domes primarily occurs when the vessel is pierside and is intermittent depending on when the dome is emptied for maintenance. On average, sonar domes on surface vessels are emptied twice a year and sonar domes on submarines are emptied once a year. The discharge of sonar dome water can range between 300 gallons to 74,000 gallons depending on the size of the sonar dome and the type of maintenance event.
Approximately ten percent of vessels of the Armed Forces generate sonar dome discharge. These vessel types include auxiliary ships, submarines, and surface combatants.
For more information regarding sonar dome discharge, please see the sonar dome nature of the discharge report in Appendix A of the Technical Development Document—EPA 821-R-99-001.
Sonar dome discharge could negatively impact receiving waters due to the possible presence of antifouling agents on the exterior rubber boots of the sonar dome, as well as from tin, zinc, copper, nickel, and epoxy paint from a sonar dome interior. The concentrations of some of these components are estimated to exceed the EPA recommended water quality criteria. Restricting the sonar dome discharge and the associated constituents of concern would protect the receiving waters.
The EPA and DoD propose to require that the water inside the sonar dome not be discharged for maintenance activities unless the use of a drydock for the maintenance activity is not feasible. The water inside the sonar dome may be discharged for equalization of pressure between the interior and exterior of the dome. This would include the discharge of water required to protect the shape, integrity, and structure of the sonar dome due to internal and external pressures and forces. The EPA and DoD also propose to require that a biofouling chemical that is bioaccumulative should not be applied to the exterior of a sonar dome when a non-bioaccumulative alternative is available.
Submarine bilgewater is the wastewater from a variety of sources that accumulates in the lowest part of the submarine (
Approximately one percent of the vessels of the Armed Forces are submarines and generate submarine bilgewater. Most submarines do not discharge bilgewater while in transit within waters subject to UNDS and instead hold and transfer submarine bilgewater to a shore-based facility. However, one class of submarines (SSN 688) discharges some of the water phase of the separated bilgewater collecting tank, as necessary.
For more information regarding submarine bilgewater, please see the submarine bilgewater nature of the discharge report in the Technical Development Document—EPA-821-R-99-001.
Submarine bilgewater discharge could negatively impact receiving waters due to the possible presence of oil and grease, volatile and semivolatile organic compounds, and metals. These constituents occur in cleaning agents, solvents, fuel, lubricating oils, and hydraulic oils used on submarines and may be present in concentrations that could contribute to an exceedance of the EPA recommended water quality criteria. Restricting the discharge of submarine bilgewater and the associated constituents of concern would help to protect the receiving waters.
The EPA and DoD propose to require that the discharge of submarine bilgewater must not contain oil in quantities that cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines; or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines; or contain an oil content above 15 ppm as measured by the EPA Method 1664a or other appropriate method for determination of oil content as accepted by the IMO (
The EPA and DoD propose to require that submarine bilgewater discharges must not occur while the submarine is in port, when the port has the capability to collect and transfer the bilgewater to an onshore facility. If the submarine is not in port, then any such discharge must be minimized and discharged as far from shore as technologically feasible. The EPA and DoD also propose to require that submarine bilgewater discharges be minimized in federally-protected waters. Finally, submarines would need to employ management practices to minimize leakage of oil and other harmful pollutants into the bilge.
Surface vessel bilgewater is the wastewater from a variety of sources that accumulates in the lowest part of the vessel (the bilge) and the oil-water separator effluent is produced when the wastewater is processed by an oil-water separator. Bilgewater consists of water and other residue that accumulates in a compartment of the vessel's hull or is collected in the oily waste holding tank or any other oily water holding tank. The primary sources of drainage into the bilge are the main engine room(s) and auxiliary machinery room(s), which house the vessel's propulsion system and auxiliary systems (
The composition of bilgewater varies from vessel-to-vessel and from day-to-day on the same vessel. The propulsion and auxiliary systems use fuels, lubricants, hydraulic fluid, antifreeze, solvents, and cleaning chemicals as part of routine operation and maintenance. Small quantities of these materials enter
Approximately 75 percent of vessels of the Armed Forces generate surface vessel bilgewater/oil-water separator effluent; submarines and some of the smaller boats and service craft do not generate surface vessel bilgewater discharge/oil-water separator effluent. Oil-water separator systems are installed on most vessels of the Armed Forces to collect the waste oil for onshore disposal. Some smaller vessels are not outfitted with oil-water separator systems; thus, bilgewater is stored for onshore disposal.
For more information regarding surface vessel bilgewater/oil-water separator effluent, please see the surface vessel bilgewater/oil-water separator nature of the discharge report in Appendix A of the Technical Development Document—EPA 821-R-99-001.
Surface vessel bilgewater/oil-water separator effluent could negatively impact receiving waters due to the possible presence of oil and grease, volatile and semivolatile organic compounds, and metals. These constituents exist in cleaning agents, solvents, fuel, lubricating oils, and hydraulic oils and may be present in concentrations that could potentially contribute to an exceedance of the EPA recommended water quality criteria. Restricting the discharge of surface vessel bilgewater/oil-water separator effluent and the associated constituents of concern would protect the receiving waters.
The EPA and DoD propose to require that surface vessels equipped with an oil-water separator must not discharge bilgewater and must only discharge oil-water separator effluent through an oil-content monitor. All surface vessels greater than 400 gross tons must be equipped with an oil-water separator. If measurements for gross tonnage are not available for a particular vessel, full displacement measurements may be used instead. The EPA and DoD also propose to require that the discharge of oil-water separator effluent not occur in port if the port has the capability to collect and transfer oil-water separator effluent to an onshore facility. In addition, the discharge of oil-water separator effluent must be minimized within one mile of shore, must occur at speeds greater than six knots if the vessel is underway, and must be minimized in federally-protected waters.
For surface vessels not equipped with an oil-water separator, the EPA and DoD propose to require that bilgewater must not be discharged if the vessel has the capability to collect, hold, and transfer to an onshore facility.
In addition, the discharge of bilgewater/oil-water separator effluent must not contain dispersants, detergents, emulsifiers, chemicals, or other substances to remove the appearance of a visible sheen. The proposed performance standard would not, however, prohibit the use of these materials in machinery spaces for the purposes of cleaning and maintenance activities associated with vessel equipment and structures. The discharge of bilgewater/oil-water separator effluent must contain substances that are produced in the normal operation of a vessel. For the discharge of oil-water separator effluent, oil solidifiers, flocculants or other additives (excluding any dispersants or surfactants) may be used to enhance oil/water separation during processing only if such solidifiers, flocculants, or other additives are minimized and do not alter the chemical composition of the oils in the discharge. Solidifiers, flocculants, or other additives must not be directly added, or otherwise combined with, the water in the bilge.
The discharge of surface vessel bilgewater/oil-water separator effluent must not contain oil in quantities that cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines; or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines; or contain an oil content above 15 ppm as measured by the EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (
When a visible sheen is observed as a result of a surface vessel bilgewater/oil-water separator effluent discharge, the discharge must be suspended immediately until the problem is corrected. Any spill or overflow of oil or other engine fluids must be cleaned up, recorded, and reported immediately to the National Response Center. The surface vessel must also employ management practices to minimize leakage of oil and other harmful pollutants into the bilge. Such practices may include regular inspection and maintenance of equipment and remediation of oil spills or overflows into the bilge using oil-absorbent or other spill clean-up materials.
Underwater ship husbandry discharges occur during the inspection, maintenance, cleaning, and repair of hulls and hull appendages while a vessel is waterborne. Underwater ship husbandry includes activities such as hull cleaning, fiberglass repair, welding, sonar dome repair, propeller lay-up, non-destructive testing/inspections, masker belt repairs, and painting operations. Underwater ship husbandry operations are normally conducted pierside, and could result in the release of metals (copper or zinc) or the introduction of non-indigenous species.
All vessels of the Armed Forces greater than or equal to 79 feet in length and some boats and service craft less than 79 feet in length, comprising 60 percent of the vessels, are expected to generate underwater ship husbandry discharge. While underwater ship husbandry discharges occur during the maintenance of all classes of vessels, many vessels less than 79 feet in length are regularly pulled from the water for hull maintenance or stored on land.
For more information regarding underwater ship husbandry, please see the underwater ship husbandry nature of the discharge report in Appendix A of the Technical Development Document—EPA 821-R-99-001.
Underwater ship husbandry could negatively impact receiving waters due to the possible presence of metals and non-indigenous species. With the exception of underwater hull cleaning, other underwater ship husbandry discharges have a low potential for causing an adverse environmental effect. Metals, such as copper and zinc from antifouling coatings, are released during underwater hull cleaning in concentrations that have the potential to cause an adverse environmental effect and could contribute to an exceedance of the EPA recommended water quality criteria. The potential also exists for release of non-indigenous species during hull cleaning. Restricting the discharge from underwater ship husbandry activities and the associated
The EPA and DoD propose to require that to the greatest extent practicable, vessel hulls with antifouling hull coatings must not be cleaned within 90 days after the antifouling coating application. Vessel hulls must be inspected, maintained, and cleaned to minimize the removal and discharge of antifouling hull coatings and transport of fouling organisms. To the greatest extent practicable, rigorous vessel hull cleanings must take place in drydock or at a land-based facility where the removed fouling organisms or spent antifouling hull coatings can be disposed of onshore in accordance with any applicable solid waste or hazardous substance management and disposal requirements. The proposed performance standard would also require that vessel hull cleanings be conducted in a manner that minimizes the release of antifouling hull coatings and fouling organisms (
This section provides an overview of the additional amendments proposed for 40 CFR part 1700. These proposed changes include the reservation of sections for the remaining discharge standards.
As noted previously, the EPA and DoD are proposing the Phase II standards in three batches. For the purpose of proposing the remaining batches, the proposal reserves the following sections for those future rulemaking actions:
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose any new information collection burden, as the EPA and DoD have determined that Phase II of UNDS does not create any additional collection of information beyond that already mandated under the Phase I of UNDS. The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations (40 CFR part 1700) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
We certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action implements mandates specifically and explicitly set forth in CWA section 312 without the exercise of any policy discretion by EPA.
The EPA and DoD concluded that the proposed rule, once finalized in Phase III, will have federalism implications. Once the proposed discharge performance standards are promulgated in Phase III by DoD, adoption and enforcement of new or existing state or local regulations for the discharges will be preempted.
Accordingly, the EPA and DoD provide the following federalism summary impact statement. During Phase I of UNDS, the EPA and DoD conducted two rounds of consultation meetings (
During Phase II, the EPA and DoD consulted again with state representatives early in the process of developing the proposed regulation. On March 9, 2016, the EPA held a Federalism consultation in Washington, DC, and invited representatives from states and political subdivisions of states in order to obtain meaningful and timely input in the development of the proposed discharge standards. The EPA and DoD informed the state representatives that the two agencies planned to use the NPDES VGPs effluent limitations as a baseline for developing the proposed discharge performance standards for the 25 discharges identified in Phase I as requiring control. During the Federalism consultation period, the EPA and DoD did not receive any substantive comments from state and local government entities.
This action does not have tribal implication as specified in Executive Order 13175. The UNDS rulemaking will not impact vessels operated by tribes because the rule only regulates discharges from vessels of the Armed Forces. However, tribes may be interested in this action because vessels of the Armed Forces, including U.S. Coast Guard vessels, may operate in or near tribal waters. The EPA hosted a National Teleconference on March 23, 2016, in order to obtain meaningful and timely input during the development of the proposed discharge standards. The EPA and DoD informed the representatives that the two agencies planned to use the NPDES VGPs effluent limitations as a baseline for developing the discharge performance standards for the 25 discharges identified in Phase I as requiring
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA and DoD do not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The 11 proposed discharge standards are designed to control discharges incidental to the normal operation of a vessel of the Armed Forces that could adversely affect human health and the environment. The standards reduce the impacts to the receiving waters and any person using the receiving waters, regardless of age.
This action is not subject to Executive Order 1321, because it is not a significant regulatory action under Executive Order 12866.
This action involves technical standards. The EPA and DoD propose to use ISO Method 9377—determination of hydrocarbon oil index. ISO Method 9377 is a voluntary consensus standard developed by an independent, non-governmental international organization.
Executive Order 13112, entitled “Invasive Species” (64 FR 6183, February 8, 1999), requires each federal agency, whose actions may affect the status of invasive species, to identify such actions, and, subject to the availability of appropriations, use relevant programs and authorities to, among other things, prevent, detect, control, and monitor the introduction of invasive species. As defined by this Executive Order, “invasive species” means an alien species whose introduction causes, or is likely to cause, economic or environmental harm or harm to human health.
As part of the environmental effects analyses, the EPA and DoD considered the control of invasive species when developing the proposed discharge performance standards for all 11 discharges (See Section II). For example, the underwater ship husbandry discharge performance standard requires the inspection of all vessels under 79 feet in length for the detection and removal of invasive species prior to transport overland from one body of water to another. This requirement as well as others within the proposed discharge standards would help to prevent or control the introduction of invasive species into the receiving waters.
Executive Order 13089, entitled “Coral Reef Protection” (63 FR 32701, June 16, 1998), requires all federal agencies to identify actions that may affect U.S. coral reef ecosystems; utilize their programs and authorities to protect the conditions of such ecosystems; and to the extent permitted by law, ensure that any actions they authorize, fund, or carry out will not degrade the conditions of such ecosystems. The proposed discharge standards are designed to control or eliminate the discharges incidental to the normal operation of vessels of the Armed Forces, ultimately minimizing the potential for causing adverse impacts to the marine environment including coral reefs.
The EPA and DoD believe that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February, 16, 1994). The proposed discharge performance standards only apply to vessels of the Armed Forces and ultimately increase environmental protection.
Table A-1 provides information regarding the composition of vessels of the Armed Forces by vessel type and vessel size.
Environmental protection, Armed Forces, Vessels, Coastal zone, Reporting and recordkeeping requirements, Water pollution control.
For the reasons stated in the preamble, title 40, chapter VII, of the Code of Federal Regulations is proposed to be amended as follows:
33 U.S.C. 1322, 1361.
(1) Regarding
(2) Regarding
(3) Regarding
(a) Discharges of catapult water brake tank effluent are prohibited.
(b) The number of post-launch retractions must be limited to the minimum number required to test and validate the system and conduct qualification and operational training.
(a) The protective seals on controllable pitch propellers must be maintained to minimize the leaking of hydraulic fluid.
(b) To the greatest extent practicable, maintenance activities on controllable pitch propellers must be conducted when a vessel is in drydock. If maintenance and repair activities must occur when the vessel is not in drydock, appropriate spill response equipment (
(c) The discharge of controllable pitch propeller hydraulic fluid must not contain oil in quantities that:
(1) Cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines; or
(2) Cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines; or
(3) Contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (
(4) Otherwise are harmful to the public health or welfare of the United States.
(a) Flight deck washdowns are prohibited.
(b) Minimize deck washdowns while in port and in federally-protected waters.
(c) Prior to performing a deck washdown, exposed decks must be broom cleaned and on-deck debris, garbage, paint chips, residues, and spills must be removed, collected, and disposed of onshore in accordance with any applicable solid waste or hazardous substance management and disposal requirements.
(d) If a deck washdown or above water line hull cleaning will result in a discharge, it must be conducted with minimally-toxic and phosphate free soaps, cleaners, and detergents. The use of soaps that are labeled toxic is prohibited. Furthermore, soaps, cleaners, and detergents should not be caustic and must be biodegradable. All soaps and cleaners must be used as directed by the label.
(e) Where feasible, machinery on deck must have coamings or drip pans, where necessary, to prevent spills and collect any oily discharge that may leak from machinery. The drip pans must be drained to a waste container for disposal onshore in accordance with any applicable oil and hazardous substance management and disposal requirements. The presence of floating solids, visible foam, halogenated phenol compounds, dispersants, and surfactants in deck washdowns must be minimized.
(f) Topside surfaces and other above water line portions of the vessel must be well maintained to minimize the discharge of rust (and other corrosion by-products), cleaning compounds, paint chips, non-skid material fragments, and other materials associated with exterior topside surface preservation. Residual paint droplets entering the water must be minimized when conducting maintenance painting. The discharge of unused paint is prohibited. Paint chips and unused paint residues must be collected and disposed of onshore in accordance with any applicable solid waste and hazardous substance management and disposal requirements.
(g) When vessels conduct underway fuel replenishment, scuppers must be plugged to prevent the discharge of oil. Any oil spilled must be cleaned, managed, and disposed of onshore in accordance with any applicable oil and hazardous substance management and disposal requirements.
(a) Firemain systems may be discharged for testing and inspections of the firemain system. To the greatest extent practicable, conduct maintenance and training outside of port and as far away from shore as possible. Firemain systems may be discharged in port for certification, maintenance, and training
(b) Firemain systems must not be discharged in federally-protected waters except when needed to washdown the anchor chain to comply with anchor washdown requirements in § 1700.16.
(c) Firemain systems may be used for secondary uses if the intake comes directly from the surrounding waters or potable water supplies.
(a) For discharges from vessels that have the capacity to hold graywater:
(1) Graywater must not be discharged in federally-protected waters or the Great Lakes.
(2) Graywater must not be discharged within one mile of shore if an onshore facility is available and disposal at such a facility is reasonable and practicable.
(3) Production and discharge of graywater must be minimized within one mile of shore when an onshore facility is either not available or use of such a facility is not reasonable and practicable.
(b) For discharges from vessels that do not have the capacity to hold graywater:
(1) Production and discharge of graywater must be minimized in federally-protected waters or the Great Lakes.
(2) Graywater must not be discharged within one mile of shore if an onshore facility is available and disposal at such a facility is reasonable and practicable.
(3) Production and discharge of graywater must be minimized within one mile of shore when an onshore facility is either not available or use of such a facility is not reasonable and practicable.
(c) Large quantities of cooking oils (
(d) Minimally-toxic soaps, cleaners, and detergents and phosphate free soaps, cleaners, and detergents must be used in the galley, scullery, and laundry. These soaps, cleaners, and detergents should also be free from bioaccumulative compounds and not lead to extreme shifts in the receiving water pH. For purposes of this subparagraph, extreme shifts means causing the receiving water pH to fall below 6.0 or rise above 9.0 as a direct result of the discharge.
(e) The discharge of graywater must not contain oil in quantities that:
(1) Cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines; or
(2) Cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines; or
(3) Contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (
(4) Otherwise are harmful to the public health or welfare of the United States.
(a) Antifouling hull coatings subject to registration under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C 136
(b) Antifouling hull coatings not subject to FIFRA registration (
(c) Antifouling hull coatings must not contain tributyltin (TBT).
(d) Antifouling hull coatings must not contain any organotin compounds when the organotin is used as a biocide. Antifouling hull coatings may contain small quantities of organotin compounds other than TBT (
(e) Antifouling hull coatings that contain TBT or other organotin compounds that are used as a biocide must be removed or an overcoat must be applied.
(f) Incidental amounts of antifouling hull coating discharged after contact with other hard surfaces (
(g) To the greatest extent practicable, use non-copper based and less toxic antifouling hull coatings. To the greatest extent practicable, use antifouling hull coatings with the lowest effective biocide release rates, rapidly biodegradable components (once separated from the hull surface), or use non-biocidal alternatives, such as silicone coatings.
(h) To the greatest extent practicable, avoid use of antifouling hull coatings on vessels that are regularly removed from the water and unlikely to accumulate hull growth.
(a) The discharge of motor gasoline and compensating effluent must not contain oil in quantities that:
(1) Cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines; or
(2) Cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines; or
(3) Contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (
(4) Otherwise are harmful to the public health or welfare of the United States.
(b) The discharge of motor gasoline and compensating effluent must be minimized in port. If an oily sheen is observed, any spill or overflow of oil must be cleaned up, recorded, and reported to the National Response Center immediately.
(c) The discharge of motor gasoline and compensating effluent is prohibited in federally-protected waters.
(a) The water inside the sonar dome must not be discharged for maintenance activities unless the use of a drydock for the maintenance activity is not feasible.
(b) The water inside the sonar dome may be discharged for equalization of pressure between the interior and exterior of the dome.
(c) A biofouling chemical that is bioaccumulative should not be applied to the exterior of a sonar dome when a non-bioaccumulative alternative is available.
The discharge of submarine bilgewater:
(a) Must not contain oil in quantities that:
(1) Cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines; or
(2) Cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines; or
(3) Contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (
(4) Otherwise are harmful to the public health or welfare of the United States.
(b) Must not contain dispersants, detergents, emulsifiers, chemicals, or other substances to remove the appearance of a visible sheen. This performance standard does not prohibit the use of these materials in machinery spaces for the purposes of cleaning and maintenance activities associated with vessel equipment and structures.
(c) Must only contain substances that are produced in the normal operation of a vessel. Oil solidifiers, flocculants or other additives (excluding any dispersants or surfactants) may be used to enhance oil-water separation during processing in an oil-water separator only if such solidifiers, flocculants, or other additives are minimized in the discharge and do not alter the chemical make-up of the oils being discharged. Solidifiers, flocculants, or other additives must not be directly added, or otherwise combined with, the water in the bilge.
(d) Must not occur in port if the port has the capability to collect and transfer the submarine bilgewater to an onshore facility.
(e) Must be minimized and, if technologically feasible, discharged as far from shore as possible.
(f) Must be minimized in federally-protected waters.
(g) Must employ management practices that will minimize leakage of oil and other harmful pollutants into the bilge.
(a) All surface vessels must employ management practices that will minimize leakage of oil and other harmful pollutants into the bilge.
(b) Surface vessels equipped with an oil-water separator must not discharge bilgewater and must only discharge oil-water separator effluent through an oil-content monitor consistent with paragraph (c) of this section. All surface vessels greater than 400 gross tons must be equipped with an oil-water separator. Surface vessels not equipped with an oil-water separator must only discharge bilgewater consistent with paragraph (d) of this section.
(c) The discharge of oil-water separator effluent:
(1) Must not contain oil in quantities that:
(i) Cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines; or
(ii) Cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines; or
(iii) Contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (
(iv) Otherwise are harmful to the public health or welfare of the United States.
(2) Must not contain dispersants, detergents, emulsifiers, chemicals, or other substances to remove the appearance of a visible sheen. This performance standard does not prohibit the use of these materials in machinery spaces for the purposes of cleaning and maintenance activities associated with vessel equipment and structures.
(3) Must only contain substances that are produced in the normal operation of a vessel. Oil solidifiers, flocculants or other additives (excluding any dispersants or surfactants) may be used to enhance oil-water separation during processing in an oil-water separator only if such solidifiers, flocculants, or other additives are minimized in the discharge and do not alter the chemical make-up of the oils being discharged. Solidifiers, flocculants, or other additives must not be directly added, or otherwise combined with, the water in the bilge.
(4) Must not occur in port if the vessel has the capability to collect and transfer oil-water separator effluent to an onshore facility.
(5) Must be minimized within one mile of shore.
(6) Must occur while sailing at speeds greater than six knots, if the vessel is underway.
(7) Must be minimized in federally-protected waters.
(d) The discharge of bilgewater (
(1) Must not occur if the vessel has the capability to collect, hold, and transfer bilgewater to an onshore facility.
(2) Notwithstanding the prohibition of the discharge of bilgewater from vessels that have the capability to collect, hold, and transfer bilgewater to an onshore facility; the discharge of bilgewater:
(i) Must not contain dispersants, detergents, emulsifiers, chemicals, or other substances to remove the appearance of a visible sheen. This performance standard does not prohibit the use of these materials in machinery spaces for the purposes of cleaning and maintenance activities associated with vessel equipment and structures.
(ii) Must only contain substances that are produced in the normal operation of a vessel. Routine cleaning and maintenance activities associated with vessel equipment and structures are considered to be normal operation of a vessel.
(iii) Must not contain oil in quantities that:
(A) Cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines; or
(B) Cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines; or
(C) Contain an oil content above 15 ppm as measured by EPA Method 1664a or other appropriate method for determination of oil content as accepted by the International Maritime Organization (IMO) (
(D) Otherwise are harmful to the public health or welfare of the United States.
(iv) Must be suspended immediately if a visible sheen is observed. Any spill or overflow of oil or other engine fluids must be cleaned up, recorded, and reported to the National Response Center immediately.
(a) For discharges from vessels that are less than 79 feet in length:
(1) To the greatest extent practicable, vessel hulls with an antifouling hull coating must not be cleaned within 90 days after the antifouling coating application.
(2) Vessel hulls must be inspected, maintained, and cleaned to minimize the removal and discharge of antifouling coatings and the transport of fouling organisms. To the greatest extent practicable, rigorous vessel hull cleanings must take place in drydock or at a land-based facility where the removed fouling organisms or spent antifouling coatings can be disposed of onshore in accordance with any applicable solid waste or hazardous substance management and disposal requirements.
(3) Prior to the transport of the vessel overland from one body of water to another, vessel hulls must be inspected for any visible attached living organisms. If fouling organisms are found, they must be removed and disposed of onshore in accordance with any applicable solid waste and
(4) Vessel hull cleanings must be conducted in a manner that minimizes the release of antifouling hull coatings and fouling organisms, including:
(i) Adhere to any applicable cleaning requirements found on the coatings' FIFRA label.
(ii) Use soft brushes or less abrasive cleaning techniques to the greatest extent practicable.
(iii) Use hard brushes only for the removal of hard growth.
(iv) Use a vacuum or other collection/control technology, when available and feasible.
(b) For discharges from vessels that are greater than or equal to 79 feet in length:
(1) To the greatest extent practicable, vessel hulls with an antifouling hull coating must not be cleaned within 90 days after the antifouling coating application. To the greatest extent practicable, vessel hulls with copper-based antifouling coatings must not be cleaned within 365 days after coating application.
(2) Vessel hulls must be inspected, maintained, and cleaned to minimize the removal and discharge of antifouling coatings and the transport of fouling organisms. To the greatest extent practicable, rigorous vessel hull cleanings must take place in drydock or at a land-based facility where the removed fouling organisms or spent antifouling coatings can be disposed of onshore in accordance with any applicable solid waste or hazardous substance management and disposal requirements.
(3) Vessel hull cleanings must be conducted in a manner that minimizes the release of antifouling hull coatings and fouling organisms, including:
(i) Adhere to any applicable cleaning requirements found on the coatings' FIFRA label.
(ii) Use soft brushes or less abrasive cleaning techniques to the greatest extent practicable.
(iii) Use hard brushes only for the removal of hard growth.
(iv) Use a vacuum or other collection/control technology, when available and feasible.
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (Commission) seeks comment on various specific issues involved in implementing a process of eliminating the provision of high-cost support to more than one competitive Eligible Telecommunications Carrier (ETC) in the same geographic area. The Commission specifically seeks comment on how best to eliminate duplicative funding consistent with our universal service goals, should the evaluation of Form 477 data reveal areas where more than one carrier is receiving support for the provision of 4G LTE service. The Commission also seeks comment on how to address a carrier's performance obligations and support payments to the extent it loses funding eligibility as a consequence of the elimination of duplicative support.
Comments are due on or before December 6, 2016 and reply comments are due on or before January 5, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this document, you should advise the contact listed below as soon as possible.
You may submit comments, identified by WC Docket No. 10-90, WC Docket No. 16-271 and WT Docket No. 16-208, by any of the following methods:
•
•
• Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
○ All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
• People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email:
Alexander Minard, Wireline Competition Bureau, (202) 418-7400 or TTY: (202) 418-0484, Matthew Warner of the Wireless Telecommunications Bureau, (202) 418-2419, or Audra Hale-Maddox of the Wireless Telecommunications Bureau, (202) 418-0794.
This is a synopsis of the Commission's Further Notice of Proposed Rulemaking (FNPRM) in WC Docket Nos. 10-90, 16-271 and WT Docket No. 16-208; FCC 16-115, adopted on August 23, 2016 and released on August 31, 2016. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th St. SW., Washington, DC 20554 or at the following Internet address:
The Report and Order that was adopted concurrently with the FNPRM is published elsewhere in this issue of the
1. In the concurrently adopted Report and Order, the Commission adopts an integrated plan to address both fixed and mobile voice and broadband service in high-cost areas of the state of Alaska,
2. The Commission's policy has been to eliminate the provision of high-cost support to more than one competitive ETC in the same geographic area. Although there currently is no duplicative support for 4G LTE service in remote Alaska, the Commission has established a process in the Report and Order to identify the existence of any such overlap mid-way through the 10-year term, and to take steps to eliminate duplicative support levels in the second half of the 10-year term of the Plan. This FNPRM seeks comment on various specific issues involved in implementing that process.
3. In the concurrently adopted Report and Order, the Commission adopts, for purposes of identifying where duplicative support is occurring, a definition that includes those areas where there is subsidized 4G LTE service provided by more than one carrier. The Commission will identify such areas and evaluate the extent of overlap, if any, based on the Form 477 data filed by the carriers in March, 2021, which will represent deployment as of December 31, 2020.
4. The Commission seeks comment on how best to eliminate duplicative funding consistent with our universal service goals, should the evaluation of that Form 477 data reveal areas where more than one carrier is receiving support for the provision of 4G LTE service. How should the Commission identify the relevant amount of support to attribute to any overlap area? Once the amount of support is identified, what mechanism should the Commission apply to eliminate the duplicative funding? For example, should the Commission eliminate support to all carriers receiving duplicative support in any given area? To the extent the Commission continues to provide support to one provider in any such area, how should the amount of support, and the recipient of that support, be determined? For example, should the Commission award support by auction in areas receiving duplicative support? Alternatively, should it award support to whichever provider serves the larger service area? If so, how should the relevant service area be defined? Should the Commission adopt an approach that would award support for any overlap area to the carrier that builds out 4G LTE in an area first? Are there other mechanisms the Commission could use to eliminate any identified overlap in 4G LTE supported service? If any of these or other proposals would result in an area being served by one subsidized provider and one unsubsidized provider, how should the Commission address that, consistent with our general policy of not providing funding where there is an unsubsidized provider?
5. Given the distinct needs and unique nature of Alaska, and the extent to which it lags much of the rest of the Nation in 4G LTE deployment, the Commission proposes that any funds no longer provided as a result of the elimination of duplicative support be used to support other mobile services in high-cost areas of Alaska. The Commission seeks comment on this proposal and, more specifically, on how any affected funds should best be used.
6. The Commission also seeks comment on how to address a carrier's performance obligations and support payments to the extent it loses funding eligibility as a consequence of the elimination of duplicative support. In such instances, the Commission proposes that a carrier amend its performance plan and that it should neither be required nor permitted to include the population in the relevant overlap area in order to meet its performance commitments. The Commission also seeks comment on whether, for carriers losing support, they should provide a phase down of support for such carriers, such as over two or three years.
7. As discussed above, the Commission will not evaluate whether there is any duplicative support or make adjustments to support payments until year five of the Alaska Plan. Given the important role of high-cost support in bringing mobile broadband service to remote Alaska, however, the Commission thinks that it is critical to engage in this process now in order to ensure a smooth transition should any modifications to the Plan be necessary to address duplicative support. Commenters are invited to address the proposals set forth above. In addition, are there other issues or alternatives that the Commission should consider in defining or eliminating duplicative competitive ETC support in Alaska?
8. The FNPRM contains proposed new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the proposed information collection requirements contained in this document, as required by the PRA. In addition, pursuant to the Small Business Paperwork Relief Act, the Commission seeks specific comment on how they might further reduce the information collection burden for small business concerns with fewer than 25 employees.
9. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Further Notice of Proposed Rulemaking (FNPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the FNPRM provided on the first page of this document. The Commission will send a copy of the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the FNPRM and IRFA (or summaries thereof) will be published in the
10. The FNPRM is needed to ensure fiscal responsibility and maximize limited support for the support going to ensure universal service in remote areas of Alaska. The FNPRM seeks comment about duplicative support under the Alaska Plan and how such support should be addressed. The FNPRM proposes that duplicative areas be defined as those areas where there is subsidized 4G LTE service provided by more than one carrier in a service area and proposes that this would be determined by using March 2021 Form 477 data. The FNPRM seeks comment on options for addressing this issue during the course of the 10-year support period under the Alaska Plan and seeks comment on eliminating duplicative support in years six through ten of the Alaska Plan, as adopted (
11. The legal basis for any action that may be taken pursuant to the FNPRM is contained in sections 1, 2, 4(i), 5, 201-206, 214, 218-220, 251, 252, 254, 256, 303(r), 332, 403, and 405 of the Communications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996, 47 U.S.C. 151, 152, 154(i), 155, 201-206, 214, 218-220, 251, 252, 254, 256, 303(r), 332, 403, and 1302.
12. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A small-business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
13. Total Small Entities. Our proposed action, if implemented, may, over time, affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three comprehensive, statutory small entity size standards. First, nationwide, there are a total of approximately 28.2 million small businesses, according to the SBA, which represents 99.7% of all businesses in the United States. In addition, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,215 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2011 indicate that there were 90,056 local governmental jurisdictions in the United States. The Commission estimates that, of this total, as many as 89,327 entities may qualify as “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.
14.
15. Accordingly, IT IS ORDERED, pursuant to the authority contained in sections 1, 2, 4(i), 5, 201-206, 214, 218-220, 251, 252, 254, 256, 303(r), 332, 403, and 405 of the Communications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996, 47 U.S.C. 151, 152, 154(i), 155, 201-206, 214, 218-220, 251, 252, 254, 256, 303(r), 332, 403, and 1302 that this Further Notice of Proposed Rulemaking is adopted.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability (NOA); request for comments.
The South Atlantic Fishery Management Council (South Atlantic Council) has submitted Amendment 37 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP) for review, approval, and implementation by NMFS. If approved by the Secretary of Commerce, Amendment 37 would modify the management unit boundaries for hogfish in the South Atlantic by establishing two hogfish stocks off (1) Georgia through North Carolina and (2) Florida Keys/East Florida; establish a rebuilding plan for the Florida Keys/East Florida hogfish stock; specify fishing levels and accountability measures (AMs), and modify or establish management measures for the Georgia through North Carolina and Florida Keys/East Florida stocks of hogfish. The purpose of Amendment 37 is to manage hogfish using the best scientific information available while ending overfishing and rebuilding the Florida Keys/East Florida hogfish stock.
Written comments must be received by December 6, 2016.
You may submit comments on Amendment 37 identified by “NOAA-NMFS-2016-0068” by either of the following methods:
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•
Electronic copies of Amendment 37 may be obtained from
Nikhil Mehta, NMFS SERO, telephone: 727-824-5305, or email:
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires each regional fishery management council to submit any fishery management plan or amendment to NMFS for review and approval, partial approval, or disapproval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP or amendment, publish an announcement in the
The FMP being revised by Amendment 37 was prepared by the South Atlantic Council, and Amendment 37, if approved, would be implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Act.
Currently, hogfish is managed under the FMP as a single stock in the South Atlantic from the jurisdictional boundary between the South Atlantic Council and Gulf of Mexico Fishery Management Council (Gulf Council) (approximately the Florida Keys) to a line extending seaward from the North Carolina and Virginia state border. The current status determination criteria such as maximum sustainable yield (MSY) and minimum stock size threshold (MSST), annual catch limits (ACLs), recreational annual catch targets (ACTs), AMs, and management measures in the FMP are established for a single stock of hogfish for the South Atlantic region. The most recent stock assessment for hogfish was completed in 2014 through the Southeast Data, Assessment, and Review assessment process (SEDAR 37). SEDAR 37 identified two separate stocks of hogfish in the South Atlantic region under the jurisdiction of the South Atlantic Council, and one stock of hogfish in the Gulf of Mexico (Gulf) under the jurisdiction of the Gulf Council. In the South Atlantic region, one stock of hogfish was identified to exist off North Carolina, South Carolina, and Georgia; and a separate stock of hogfish was identified to exist off the Florida Keys and East Florida. The South Atlantic Council's Scientific and Statistical Committee (SSC) did not consider the SEDAR 37 results for the Georgia through North Carolina stock as sufficient to determine stock status and inform South Atlantic Council management decisions, and the South Atlantic Council concurred. NMFS agreed and determined that the overfishing and overfished status determination of the Georgia through North Carolina stock is unknown. Based on SEDAR 37 and the South Atlantic Council's SSC recommendation for the Florida Keys/East Florida stock, NMFS determined that the Florida Keys/East Florida stock is currently undergoing overfishing and is overfished. Based on SEDAR 37, NMFS also determined that the West Florida hogfish stock in the Gulf identified by SEDAR 37, which occurs off the west coast of Florida to Texas, is neither overfished, nor undergoing overfishing. NMFS notified the South Atlantic Council of its determinations via letter on February 17, 2015.
Amendment 37 includes actions to revise the hogfish fishery management unit in the FMP by establishing two hogfish stocks, one in Federal waters off Georgia through North Carolina and one in Federal waters off the Florida Keys/East Florida; establish a rebuilding plan for the Florida Keys/East Florida hogfish stock; specify fishing levels and accountability measures (AMs), and modify or establish management measures for the Georgia through North Carolina and Florida Keys/East Florida stocks of hogfish. All weights of hogfish are described in round weight.
Currently, hogfish is managed as a single stock in Federal waters in the South Atlantic region from the jurisdictional boundary between the South Atlantic and Gulf Councils to the North Carolina/Virginia border. Amendment 37 would establish new stock boundaries and create two stocks of hogfish under the jurisdiction of the South Atlantic Council. The first stock would be the Georgia through North Carolina stock, with a southern boundary extending from the Florida/Georgia state border, and a northern border extending from the North Carolina/Virginia state border. The second stock would be the Florida Keys/East Florida hogfish stock, with a southern boundary extending from 25°09′ N. lat. near Cape Sable on the west coast of Florida. The management area would extend south and east around the Florida Keys and have a northern border extending from the Florida/Georgia state border.
The Gulf Council has approved Amendment 43 to the FMP for the Reef Fish Resources of the Gulf, and has selected the same boundary near Cape Sable on the west coast of Florida to separate the Florida Keys/East Florida hogfish stock from the hogfish stock in the Gulf (West Florida hogfish stock). In accordance with Section 304(f) of the Magnuson-Stevens Act, the Gulf Council requested that the Secretary designate the South Atlantic Council as the responsible Council for management of this hogfish stock in Gulf Federal waters south of 25°09′ N. lat. near Cape Sable on the west coast of Florida. If the Gulf Council's request is approved, the Gulf Council would continue to manage the West Florida hogfish stock in Federal waters in the Gulf, except in Federal waters south of this boundary. Therefore, the South Atlantic Council, and not the Gulf Council, would establish the management measures for the entire range of the Florida Keys/East Florida hogfish stock, including in Federal waters south of 25°09′ N. lat. near Cape Sable in the Gulf. Commercial and recreational for-hire vessels fishing for hogfish in Gulf Federal waters,
As described in Amendment 37, the proposed stock boundary near Cape Sable, Florida, would be a good demarcation point because it coincides with an existing State of Florida management boundary for Florida's
Currently, MSY for the single hogfish stock in the South Atlantic is the yield produced by the fishing mortality rate at MSY (F
Because the Florida Keys/East Florida hogfish stock is overfished, Amendment 37 would establish a rebuilding plan that would set the acceptable biological catch (ABC) equal to the yield at a constant fishing mortality rate and rebuild the stock in 10 years with a 72.5 percent probability of success. Year 1 of the rebuilding plan would be 2017, and 2027 would be the last year. The South Atlantic Council's SSC indicated that harvest levels proposed in the Amendment 37 rebuilding plan are sustainable and would achieve the goal of rebuilding the Florida Keys/East Florida hogfish stock. As explained below, the ABC for the Florida Keys/East Florida hogfish stock would be 17,930 fish in 2017 and would increase annually through 2027 when the ABC would be 63,295 fish.
Currently, the total ABC for the single hogfish stock (equal to ACL and OY) is 134,824 lb (61,155 kg), with a commercial ACL sector allocation (36.69 percent) of 49,469 lb (22,439 kg), and recreational ACL sector allocation (63.31 percent) of 85,355 lb (38,716 kg). For the Georgia through North Carolina hogfish stock, Amendment 37 would specify an ABC of 35,716 lb (16,201 kg), a total ACL and OY (equal to 95 percent of the ABC) of 33,930 lb (15,390 kg), and commercial and recreational ACLs based on re-calculated sector allocations of 69.13 percent to the commercial sector and 30.87 percent to the recreational sector. It was necessary to re-calculate the sector allocations based on the existing formula from the Comprehensive ACL Amendment, based on the appropriate landings from the relevant geographic region of the new stock. The commercial ACL would be 23,456 lb (10,639 kg) and the recreational ACL would be 988 fish.
For the Florida Keys/East Florida stock of hogfish, Amendment 37 would specify an ABC of 17,930 fish which would increase annually through 2027 when the ABC would be 63,295 fish. The total ACL and OY would be equal to 95 percent of the ABC, and the commercial and recreational ACLs would be based on re-calculated sector allocations of 9.63 percent to the commercial sector and 90.37 percent to the recreational sector. In 2017, the total ACL (and OY) would be 17,034 fish, the commercial ACL would be 3,510 lb (1,592 kg), and the recreational ACL would be 15,689 fish and would increase annually through 2027 as the stock rebuilds. In 2027, the total ACL (and OY) for the Florida Keys/East Florida hogfish stock would be 60,130 fish, the commercial ACL would be 17,018 lb (7,719 kg), and recreational ACL would be 53,610 fish.
The recreational ACT for the current hogfish stock is 59,390 lb (26,939 kg). Amendment 37 would specify a recreational ACT (equal to 85 percent of the recreational ACL) of 840 fish for the Georgia through North Carolina stock, and 13,335 fish for the Florida Keys/East Florida stock in 2017. The recreational ACTs for the Florida Keys/East Florida stock would increase annually from 2017 through 2027 as the stock rebuilds. NMFS notes that the recreational ACT is currently used only for monitoring.
The current South Atlantic commercial AMs for the single hogfish stock consist of an in-season closure of the commercial sector if the commercial ACL is met or projected to be met; and if the commercial ACL is exceeded, a post-season AM that would reduce the commercial ACL by the amount of the commercial ACL overage during the following fishing year, only if the total ACL is also exceeded and hogfish are overfished. Amendment 37 would retain the current South Atlantic in-season and post-season AMs for the commercial sector, and apply them to both the Georgia through North Carolina and Florida Keys/East Florida hogfish stocks.
The current South Atlantic recreational AMs for the single hogfish stock consist of an in-season closure of the recreational sector if the recreational ACL is met or is projected to be met. If the recreational ACL is exceeded, then during the following fishing year, NMFS will monitor for a persistence in increased landings. The post-season AM would reduce the length of the recreational season and the recreational ACL by the amount of the recreational ACL overage, only if the total ACL is also exceeded and hogfish are overfished. Amendment 37 would retain these current South Atlantic recreational AMs for both the Georgia through North Carolina and Florida Keys/East Florida hogfish stocks.
The current minimum size limit for the single hogfish stock in the South Atlantic is 12 inches (30.5 cm), fork length (FL), for both the commercial and recreational sectors. For both the commercial and recreational sectors, Amendment 37 would increase the minimum size limit to 17 inches (43.2 cm), FL, for the Georgia through North Carolina hogfish stock, and 16 inches (40.6 cm), FL, for the Florida Keys/East Florida hogfish stock. The South Atlantic Council determined these minimum size limits could serve as a precautionary approach to address population stability, considering life
Currently, there is no commercial trip limit for hogfish in the South Atlantic. Amendment 37 would establish a commercial trip limit of 500 lb (227 kg) for the Georgia through North Carolina stock, and 25 lb (11 kg) for the Florida Keys/East Florida stock. As described in Amendment 37, few fishermen catch more than 500 lb (227 kg) of hogfish per trip off Georgia through North Carolina, and the proposed commercial ACL is not expected to be met. However, because restrictions on commercial harvest of hogfish from the Florida Keys/East Florida stock could be large, there was some concern that fishermen may shift effort to Georgia and the Carolinas. Therefore, the South Atlantic Council proposed a 500-lb (227-kg) commercial trip limit for the Georgia through North Carolina stock to enable commercial harvest in that geographic sub-region to take place year-round. The South Atlantic Council determined that implementing a trip limit of 25 lb (11 kg) for the Florida Keys/East Florida stock would restrict harvest and help to extend the commercial fishing season.
The current recreational bag limit for hogfish in the South Atlantic is five fish per person per day in Federal waters off Florida, with no recreational bag limits in Federal waters off Georgia, South Carolina, and North Carolina. Amendment 37 would set a recreational bag limit of one fish per person per day in Federal waters off the Florida Keys and East Florida, and a recreational bag limit of two fish per person per day in Federal waters off Georgia through North Carolina. The South Atlantic Council determined that these bag limits would reduce harvest and help to extend the recreational fishing season.
Currently, hogfish is available for the recreational sector to harvest year-round, as long as the recreational ACL has not been met. Amendment 37 would establish a recreational fishing season from May through October for the Florida Keys/East Florida hogfish stock. As described in Amendment 37, hogfish spawning activity occurs predominantly during the months of December through April, and begins (and ends) slightly earlier in the Florida Keys than on the West Florida shelf (
A proposed rule that would implement Amendment 37 has been drafted. In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable laws. If that determination is affirmative, NMFS will publish the proposed rule in the
The South Atlantic Council has submitted Amendment 37 for Secretarial review, approval, and implementation. Comments on Amendment 37 must be received by December 6, 2016. Comments received during the respective comment periods, whether specifically directed to Amendment 37 or the proposed rule will be considered by NMFS in the decision to approve, disapprove, or partially approve Amendment 37. Comments received after the comment periods will not be considered by NMFS in this decision. All comments received by NMFS on the amendment or the proposed rule during their respective comment periods will be addressed in the final rule.
16 U.S.C. 1801
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by November 7, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Notice of meeting.
The Ozark-Ouachita Resource Advisory Committee (RAC) will meet in Fort Smith, Arkansas. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site:
The meeting will be held November 1, 2016, beginning at 1:00 p.m. (CST). In the event of unavoidable circumstances, alternate dates for the meeting are November 2 and November 3, 2016.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at Janet Huckabee Arkansas River Valley Nature Center, 8300 Wells Lake Road, Fort Smith, Arkansas.
Written comments may be submitted as described under
Caroline Mitchell, Committee Coordinator, by phone at 501-321-5318 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is:
1. To review Title II proposals.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by October 28, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Caroline Mitchell, Committee Coordinator, PO Box 1270, Hot Springs, Arkansas, or via facsimile to 501-321-5399.
Natural Resources Conservation Service (NRCS), U.S. Department of Agriculture (USDA).
Notice of availability of proposed changes in the NRCS National Handbook of Conservation Practices (NHCP) for public review and comment.
Notice is hereby given of the intention of NRCS to issue a series of revised conservation practice standards in NHCP. These standards include Brush Management (Code 314), Herbaceous Weed Treatment (Code 315), Lined Waterway or Outlet (Code 468), Prescribed Grazing (Code 528), and Restoration of Rare or Declining Natural Communities (Code 643). NRCS State Conservationists who choose to adopt these practices for use within their States will incorporate them into section IV of their respective electronic Field Office Technical Guide. These practices may be used in conservation systems that treat highly erodible land (HEL), or on land determined to be a wetland. Section 343 of the Federal Agriculture Improvement and Reform Act of 1996 requires NRCS to make available for public review and comment all proposed revisions to conservation practice standards used to carry out HEL and wetland provisions of the law.
Comments should be submitted, identified by Docket Number NRCS-2016-0008, using any of the following methods:
•
•
NRCS will post all comments on
Terri Ruch, acting national agricultural engineer, Conservation Engineering Division, Department of Agriculture, Natural Resources Conservation Service, 1400 Independence Avenue SW., Room 6133 South Building, Washington, DC 20250.
Electronic copies of the proposed revised standards are available from
The amount of the proposed changes varies considerably for each of the conservation practice standards addressed in this notice. To fully understand the proposed changes, individuals are encouraged to compare these changes with each standard's current version as shown at:
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 meetings of the West Virginia Advisory Committee (Committee) to the Commission will convene by conference call at 12:00 p.m. (EST) on. The purpose of meetings are to discuss and vote on the Committee's report regarding Mental Health and discuss topics for the Committee's future civil rights review.
Friday, November 4, 2016; Friday, December 2, 2016; and Friday, January 6, 2017.
12:00 p.m. (EST).
Conference call-in number: 1-888-601-3861 and password: 636552.
Ivy L. Davis, at
Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1-888-601-3861 and password: 636552. 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 Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free conference call-in number.
Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1- 800-977-8339 and providing the operator with the toll-free conference call-in number: 1-888-601-3861 and password: 636552.
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
The City of Mobile, Alabama, grantee of FTZ 82, submitted a notification of proposed production activity to the FTZ Board on behalf of Airbus Americas, Inc. (Airbus), located in Mobile, Alabama. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on September 29, 2016.
Airbus already has authority to produce commercial passenger jet aircraft within Site 1 of FTZ 82. The current request would add additional foreign status materials/components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials/components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Airbus from customs duty payments on the foreign-status materials/components used in export production. On its domestic sales, Airbus would be able to choose the duty rates during customs entry procedures that apply to commercial passenger jet aircraft (duty rate free) for the foreign-status materials/components noted below and in the existing scope of authority. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.
The materials/components sourced from abroad include: Talcum powder; oil-based preservatives; engine, turbine and gear box oils; petroleum jelly; glycerol; non-aqueous paints and
The applicant has elected to admit the following components into the zone site in privileged foreign status: Textile pouches (4202.92); twill tape (5208.39); synthetic sewing yarn (5401.10); water absorbent felt (5602.10); synthetic braided cordage (5607.50); synthetic emergency escape rope and retaining cords (5609.00); synthetic fireproof gloves (6116.93); and, finished aircraft curtain and class divider assemblies (6303.92).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is November 16, 2016.
A copy of the notification will be available for public inspection at the
For further information, contact Christopher Kemp at
Givaudan Flavors Corporation (Givaudan) submitted a notification of proposed production activity to the FTZ Board for its facility in East Hanover, New Jersey within Subzone 44H. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on September 20, 2016.
The Givaudan facility is used for the production of flavor compounds. Givaudan's notification seeks to add additional finished products using the components previously authorized for the facility. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Givaudan from customs duty payments on the foreign status components used in export production. On its domestic sales, for the foreign status components in the existing scope of authority, Givaudan would be able to choose the duty rates during customs entry procedures that apply to: Cocoa food preparations; dairy food preparations; coffee food preparations; seasonings; sauces; other food preparations with dairy; confectionary without sugar; other food preparations; food articles containing sugar; other cyclanes, cyclenes and cycloterpenes; other cyclic hydrocarbons; acyclic terpene alcohols; butanoic acids; pentanoic acids their salts and esters; aqueous distillates and aqueous solutions of essential oils; and, terpenic by-products of the deterpenation of essential oils (duty rate ranges from free to 70.4 cents/kg +8.50%). Customs duties also could possibly be deferred or reduced on foreign status production equipment.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is November 16, 2016.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
For further information, contact Kathleen Boyce at
The Emerging Technology and Research Advisory Committee (ETRAC) will meet on October 27, 2016, 8:30 a.m., Room 3884, at the Herbert C. Hoover Building, 14th Street between Pennsylvania and Constitution Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on emerging technology and research activities, including those related to deemed exports.
1. Welcome and Opening Remarks.
2. Update on Export Control Reform, Bureau of Industry and Security.
3.
4.
5.
6.
7. Comments from the Public.
The open sessions will be accessible via teleconference to 25 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
For more information, call Yvette Springer at (202) 482-2813.
International Trade Administration, U.S. Department of Commerce.
Notice of an opportunity for travel and tourism industry leaders to apply for membership on the Board of Directors of the Corporation for Travel Promotion.
The Department of Commerce is currently seeking applications from travel and tourism leaders from specific industries for membership on the Board of Directors (Board) of the Corporation for Travel Promotion (dba Brand USA).
All applications must be received by the National Travel & Tourism Office by close of business on October 21, 2016.
Electronic applications may be sent to:
Julie Heizer, Deputy Director, National Travel & Tourism Office, Mail Stop 10003, 1401 Constitution Avenue NW., Washington, DC 20230. Telephone: 202.482.4904. Email:
The Corporation (doing business as Brand USA) is governed by a Board of Directors, consisting of 11 members with knowledge of international travel promotion or marketing, broadly representing various regions of the United States. The TPA directs the Secretary of Commerce (after consultation with the Secretary of Homeland Security and the Secretary of State) to appoint the Board of Directors for the Corporation.
On August 3, 2016, we published in the
(A) 1 shall have appropriate expertise and experience in the attractions or recreation sector;
(B) 1 shall have appropriate expertise and experience in immigration policy/law;
(C) 1 shall have appropriate expertise and experience in land or sea passenger transportation; and
(D) 1 shall have appropriate expertise and experience as an official in the passenger air transportation sector.
This notice supplements the notice of August 3, 2016. Interested parties who have already applied in response to that
To be eligible for Board membership, individuals must have international travel and tourism marketing experience, be a current or former chief executive officer, chief financial officer, or chief marketing officer or have held an equivalent management position. Additional consideration will be given to individuals who have experience working in U.S. multinational entities with marketing budgets, and/or who are audit committee financial experts as defined by the Securities and Exchange Commission (in accordance with section 407 of PL 107-204 [15 U.S.C. 7265]). Individuals must be U.S. citizens, and in addition, cannot be federally-registered lobbyists or registered as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.
Those selected for the Board must be able to meet the time and effort commitments of the Board.
Board members serve at the discretion of the Secretary of Commerce (who may remove any member of the Board for good cause). The terms of office of each member of the Board appointed by the Secretary shall be three (3) years. Board members can serve a maximum of two consecutive full three-year terms. Board members are not considered Federal government employees by virtue of their service as a member of the Board and will receive no compensation from the Federal government for their participation in Board activities. Members participating in Board meetings and events may be paid actual travel expenses and per diem when away from their usual places of residence by the Corporation.
Individuals who want to be considered for appointment to the Board should submit:
1. Name, title, and personal resume of the individual requesting consideration, including address, email address and phone number;
2. A brief statement of why the person should be considered for appointment to the Board. This statement should also address the individual's relevant international travel and tourism marketing experience and indicate clearly the sector or sectors enumerated above in which the individual has the requisite expertise and experience. Individuals who have the requisite expertise and experience in more than one sector can be appointed for only one of those sectors. Appointments of members to the Board will be made by the Secretary of Commerce; and
3. An affirmative statement that the applicant is a U.S. citizen and further, is not required to register as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Every five years, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) and the International Trade Commission
The following Sunset Reviews are scheduled for initiation in November 2016 and will appear in that month's Notice of Initiation of Five-Year Sunset Review (“Sunset Review”).
The Department's procedures for the conduct of Sunset Reviews are set forth in 19 CFR 351.218. The Notice of Initiation of Five-Year (“Sunset”) Reviews provides further information regarding what is required of all parties to participate in Sunset Reviews.
Pursuant to 19 CFR 351.103(c), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Please note that if the Department receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue. Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation.
This notice is not required by statute but is published as a service to the international trading community.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Effective October 7, 2016.
The Department of Commerce (“Department”) hereby publishes a list of scope rulings and anticircumvention determinations made between October 1, 2015, and December 31, 2015, inclusive. We intend to publish future lists after the close of the next calendar quarter.
Brenda E. Waters, AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-4735.
The Department's regulations provide that the Secretary will publish in the
Requestor: PriceSmart, Inc. (“PriceSmart”); PriceSmart's LED candles are outside the scope of the order because they have plastic wicks; October 9, 2015.
Interested parties are invited to comment on the completeness of this
This notice is published in accordance with 19 CFR 351.225(o).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Effective October 7, 2016.
The Department of Commerce (“Department”) preliminarily determines that 1,1,1,2-Tetrafluoroethane (“R-134a”) from the People's Republic of China (“PRC”) is being, or is likely to be, sold in the United States at less than fair value (“LTFV”). The period of investigation (“POI”) is July 1, 2015, through December 31, 2015. The estimated margins of sales at LTFV are shown in the “Preliminary Determination” section of this notice. The final determination will be issued 75 days after publication of this preliminary determination in the
Keith Haynes or Paul Stolz, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5139 or, (202) 482-4474 respectively.
The product subject to this investigation is 1,1,1,2-Tetrafluoroethane, R-134a. For a full description of the scope of this investigation,
The Department is conducting this investigation in accordance with section 731 of the Tariff Act of 1930, as amended (“the Act”). We calculated export prices in accordance with section 772 of the Act. Because the PRC is a non-market economy within the meaning of section 771(18) of the Act, normal value (“NV”) was calculated in accordance with section 773(c) of the Act.
For a full description of the methodology underlying our conclusions,
On September 9, 2016, Petitioners filed a timely critical circumstances allegation pursuant to section 733(e)(1) of the Act and 19 CFR 351.206 with respect to imports of the subject merchandise.
The Department preliminarily finds that the PRC-wide entity, which includes certain PRC exporters and/or producers that did not respond to the Department's requests for information, withheld information requested by the Department and significantly impeded this proceeding by not submitting requested information. Specifically, 26 companies within the PRC-wide entity failed to respond to the Department's request for quantity and value (“Q&V”) information.
Therefore, we preliminarily find that an adverse inference is warranted in selecting from among the facts otherwise available with respect to the PRC-wide entity in accordance with sections 776(a) and 776(b) of the Act and 19 CFR 351.308(a). As adverse facts available, we have preliminarily assigned the PRC-wide entity a rate of 187.71 percent. Further, with respect to critical circumstances, we have preliminarily determined, again, based on adverse facts available, that the PRC-wide entity dumped “massive imports” over a “relatively short period.” For further explanation and analysis,
In the
The preliminary weighted-average antidumping duty (“AD”) margin percentages are as follows:
As detailed further in the Preliminary Decision Memorandum, Zhejiang Quzhou Lianzhou Refrigerants Co., Ltd., a mandatory respondent in this investigation, did not demonstrate that it was entitled to a separate rate. Accordingly, we consider this company to be part of the PRC-wide entity.
In accordance with section 733(d) of the Act the Department will instruct U.S. Customs and Border Protection (“CBP”) to suspend liquidation of all entries of R-134a from the PRC, as described in the “Scope of the Investigation” in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Section 733(e)(2) of the Act provides that, given an affirmative determination of critical circumstances, any suspension of liquidation shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the later of (a) the date which is 90 days before the date on which the suspension of liquidation was first ordered, or (b) the date on which notice of initiation of the investigation was published. We preliminarily find that critical circumstances exist for imports of R-134a from the PRC produced and exported by the separate rate respondents, and the PRC-wide entity. Accordingly, for the separate rate respondents and the PRC-wide entity, in accordance with section 733(e)(2)(A) of the Act, the suspension of liquidation shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the date which is 90 days before the publication of this notice.
Pursuant to 19 CFR 351.205(d), the Department will instruct CBP to require a cash deposit
We intend to disclose the calculations performed to parties in this proceeding within five days after public announcement of the preliminary determination in accordance with 19 CFR 351.224(b). Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the final verification report is issued in this proceeding and rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically at Enforcement and Compliance's electronic records system, ACCESS. An electronically filed document must be received successfully in its entirety by the Department's electronic records system, ACCESS, by 5:00 p.m. Eastern Standard Time, within 30 days after the date of publication of this notice.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by Petitioners. 19 CFR 351.210(e)(2) requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On September 29, 2016, pursuant to 19 CFR 351.210(b) and (e), Sanmei requested that, contingent upon an affirmative preliminary determination of sales at LTFV for the respondents, the Department postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because (1) our preliminary determination is affirmative; (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, we are postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, we will make our final determination no later than 135 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.
In accordance with section 733(f) of the Act, we notified the ITC of our preliminary affirmative determination of sales at LTFV. Section 735(b)(2) of the Act requires the ITC to make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of R-134a, or sales (or the likelihood of sales) for importation, of the merchandise under consideration within 45 days of our final determination.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The product subject to this investigation is 1,1,1,2-Tetrafluoroethane, R-134a, or its chemical equivalent, regardless of form, type, or purity level. The chemical formula for 1,1,1,2-Tetrafluoroethane is CF
Merchandise covered by the scope of this investigation is currently classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) at subheading 2903.39.2020. Although the HTSUS subheading and CAS registry number are provided for convenience and customs purposes, the written description of the scope is dispositive.
National Institute of Standards and Technology, Department of Commerce.
Notice of closed meeting.
The Judges Panel of the Malcolm Baldrige National Quality Award (Judges Panel) will meet in closed session Sunday, October 30, 2016 through Friday, November 4, 2016, from 8:30 a.m. until 5:30 p.m. Eastern time each day. The purpose of this meeting is to review recommendations from site visits, and recommend 2016 Malcolm Baldrige National Quality Award recipients. The meeting is closed to the public in order to protect the proprietary data to be examined and discussed at the meeting.
The meeting will be held Sunday, October 30, 2016 through Friday, November 4, 2016, from 8:30 a.m. until 5:30 p.m. Eastern time each day. The entire meeting will be closed to the public.
The meeting will be held at the National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, MD 20899.
Robert Fangmeyer, Director, Baldrige Performance Excellence Program, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 1020, Gaithersburg, MD 20899-1020, telephone number (301) 975-2360, email
15 U.S.C. 3711a(d)(1) and the Federal Advisory Committee Act, as amended, 5 U.S.C. App.
Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. App., notice is hereby given that the Judges Panel will meet Sunday, October 30, 2016 through Friday, November 4, 2016, from 8:30 a.m. until 5:30 p.m. Eastern time each day. The Judges Panel is composed of twelve members, appointed by the Secretary of Commerce, chosen for their familiarity with quality improvement operations and competitiveness issues of manufacturing companies, service companies, small businesses, health care providers, and educational institutions. Members are also chosen who have broad experience in for-profit and nonprofit areas. The purpose of this meeting is to review recommendations from site visits and recommend 2016 Malcolm Baldrige National Quality Award (Award) recipients. The meeting is closed to the public in order to protect the proprietary data to be examined and discussed at the meeting.
The Chief Financial Officer and Assistant Secretary for Administration, with the concurrence of the Assistant General Counsel for Administration and Transactions, formally determined on May 19, 2016 and amended on September 26, 2016, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended by Section 5(c) of the Government in Sunshine Act, P.L. 94-409, that the meeting of the Judges Panel may be closed to the public in accordance with 5 U.S.C. 552b(c)(4) because the meeting is likely to disclose trade secrets and commercial or financial information obtained from a person which is privileged or confidential; and 5 U.S.C. 552b(c)(9)(B) because for a government agency the meeting is likely to disclose information that could significantly frustrate implementation of a proposed agency action. The meeting, which involves examination of current Award applicant data from U.S. organizations and a discussion of these data as compared to the Award criteria in order to recommend Award recipients, will be closed to the public.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before December 6, 2016.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Les Cockreham, (907) 271-3021 or
This request is for extension of a currently approved information collection.
The Marine Mammal Protection Act exempts Alaskan natives from the prohibitions on taking, killing, or injuring marine mammals if the taking is done for subsistence or for creating and selling authentic native articles of handicraft or clothing. The natives need no permit, but non-natives who wish to act as a tanner or agent for such native products must register with NOAA and maintain and submit certain records. The information is necessary for law enforcement purposes.
Paper documentation is submitted to meet the requirements found at 50 CFR 216.23(c).
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed additions to and deletions from the Procurement List.
The Committee is proposing to add products and service to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and to delete products previously furnished by such agencies.
Comments must be received on or before: 11/6/2016.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Patricia Briscoe, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to furnish the products and service listed below from the nonprofit agencies employing persons who are blind or have other severe disabilities.
The following products and service are proposed for addition to the Procurement List for provision by the nonprofit agencies listed:
The Commission is publishing corrections to its Notice published in the
The following products are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Addition to and deletions from the Procurement List.
This action adds a service to the Procurement List that will be provided by nonprofit agency employing persons who are blind or have other severe disabilities, and deletes products and services from the Procurement List previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Patricia Briscoe, Telephone: (703) 603-
On 5/20/2016 (81 FR 31917-31918), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agency to provide the service and impact of the addition on the current or most recent contractors, the Committee has determined that the service listed below is suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will provide the service to the Government.
2. The action will result in authorizing small entities to provide the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the service proposed for addition to the Procurement List.
Accordingly, the following service is added to the Procurement List:
On 8/26/2016 (81 FR 58913-58917), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products and services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and services deleted from the Procurement List.
Accordingly, the following products and services are deleted from the Procurement List:
Air Force Materiel Command, Department of Defense.
Notice of Intent.
Pursuant to the provisions of Part 404 of Title 37, Code of Federal Regulations, which implements Public Law 96-517, as amended; the Department of the Air Force announces its intention to grant The Regents of the University of Michigan, a land-grant educational institution of the State of Michigan, having a place of business at 503 S. State St., Ann Arbor, MI 48109.
The Air Force intends to grant a license for the patent and pending applications unless a written objection is received within fifteen (15) calendar
Written objection should be sent to: Air Force Materiel Command Law Office, AFMCLO/JAZ, 2240 B Street, Rm. 101, Wright-Patterson AFB, OH 45433-7109; Facsimile: (937) 255-3733.
Air Force Materiel Command Law Office, AFMCLO/JAZ, 2240 B Street, Rm. 101, Wright-Patterson AFB, OH 45433-7109; Facsimile: (937) 255-3733.
An exclusive license in any right, title, and interest of the Air Force in: U.S. Provisional Application No. 62/383,775, entitled, “DURABLE HYDROPHOBIC SURFACES,” by Anish Tuteja, Kevin Golovin, James Gose, Matthew Boban, Joseph Mabry, Marc Perlin, and Steven Ceccio and filed on 6 September 2016.
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 November 7, 2016.
Fred Licari, 571-372-0493.
Comments and recommendations on the proposed information collection should be emailed to Ms. Seehra, DoD Desk Officer, at
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 03F09, Alexandria, VA 22350-3100.
Office of the Secretary of Defense, DoD.
Notice to alter 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 alter a system of records DUSDP 11, entitled “POW/Missing Personnel Office Files,” last published at 62 FR 40051, July 25, 1997. This system of records exists to collect information concerning DoD personnel and U.S. citizens who are known or may be prisoners of war or officially missing in order to provide the fullest possible accounting for our missing personnel to their families and the nation. The data is also used to produce studies and analytical reports for agencies that develop policies with respect to American military members and civilians designated as missing or prisoners of war as a result of campaigns or wars involving the U.S. Military.
This update reflects considerable administrative changes that in sum warrant an alteration to the system of records notice. In this notice, references to specific wars and conflicts has been removed from the categories of individuals to clarify who may be a subject of these records. The records are no longer retrieved by Social Security
Comments will be accepted on or before November 7, 2016. This proposed action will be effective the date 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:
*
*
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 Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on September 13, 2016, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4 of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” revised November 28, 2000 (December 12, 2000 65 FR 77677).
POW/Missing Personnel Office Files (July 25, 1997, 62 FR 40051).
Delete entry and replace with “POW/MIA Personnel Files.”
Delete entry and replace with “Defense POW/MIA Accounting Agency (DPAA), 241 18th Street S., Suite 800, Arlington, VA 22202-3420.”
Delete entry and replace with “U.S. Military personnel designated by their Service Secretary or U.S. citizens by the U.S. Department of State as prisoners of war or missing in action (POW/MIA). The status applies to those POW or MIA during any campaign or hostile action involving U.S. Military intervention or declared war, and includes private citizens on personal travel that were detained or went missing in current or previous hostile fire/combat zones.”
Delete entry and replace with “Name, date of birth, place of birth, branch of military service, serial/service number or DOD Identification (DoD ID) number, field search case number or source reference number (in the case of a classified source); next of kin and/or requester name, current address, personal telephone number, and email address. Other records included in the system are operational and information reports, biographic records, physical descriptions, personal statements and correspondence, returnee debriefings, interviews and media reports.
The Social Security Number is no longer collected or used to retrieve records in this system.”
Delete entry and replace with “10 U.S.C. 134, Under Secretary of Defense for Policy; 10 U.S.C. Chapter 76, Missing Persons (sections 1501 through 1513); and DoD Directive 5110.10, Defense Prisoner of War/Missing Personnel Office (DPMO).”
Delete entry and replace with “To develop a detailed and comprehensive body of information concerning Department of Defense personnel and U.S. citizens who are known or may be prisoners of war or officially missing in order to provide the fullest possible accounting for our missing personnel to their families and the nation. Records are used to investigate the event and account for POW/MIA personnel. Data are also used to produce studies and analytical reports furnished as background material to offices and agencies that enunciate and promulgate National policy with respect to American military members and civilians designated as missing or prisoners of war as a result of campaigns or wars involving the U.S. Military.”
Delete entry and replace with “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 therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To a domestic or foreign entity that has entered into a public-private partnership with the Defense POW/MIA Accounting Agency (DPAA) as authorized by 10 U.S.C. 1501a, when DPAA determines that such disclosure is necessary to the performance of services DPAA has agreed shall be performed by the partner.
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
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 for the purpose of representing the Department of Defense, or any officer, employee or member of the Department in pending or potential litigation to which the record is pertinent.
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.”
Delete entry and replace with “Paper records, electronic storage media, microfilm, and microfiche.”
Delete entry and replace with “Retrieved by any or a combination of: Individual's name, serial/service number, date of birth, branch of military service, next of kin and/or requester's name, current address, personal telephone number, email address, or source reference number (in the case of a classified source).”
Delete entry and replace with “Paper records, microfilm, and microfiche are maintained in a controlled access office and are stored in a secure vault work area. Access to electronic records is restricted by Common Access Card (CAC) and/or username/password which are changed periodically. All records are only accessible to authorized personnel with a demonstrated need for access. Personnel are properly screened, cleared, and trained in the protection of privacy information.”
Delete entry and replace with “Permanent. Transfer legal custody to NARA 25 years after closure.”
Delete entry and replace with “Defense Prisoner of War/Missing in Action Accounting Agency (DPAA), 2000 Defense Pentagon, Washington, DC 20301-2000.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Defense Prisoner of War/Missing in Action Accounting Agency (DPAA), 2000 Defense Pentagon, Washington, DC 20301-2000.
Signed written requests should include full name, serial/service number as appropriate (if any), and date of birth, branch of military service, if applicable, as well as the requester's current address and telephone number.
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).'”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system of records should address written inquiries to Office of the Secretary of Defense/Joint Staff, Freedom of Information Requester Service Center, 1155 Defense Pentagon, Washington DC 20301-1155.
Signed written requests should include full name, serial/service number as appropriate (if any), and date of birth, branch of military service, if applicable, as well as the requester's current address, email address, 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).' ”
Delete entry and replace with “Department of Defense, Department of State and U.S. Intelligence Agencies, interviews and debriefings of returnees, next of kin, confidential sources, and other individuals; representatives of concerned organizations; resident aliens; foreign sources; and open publications.”
POW/MIA Personnel Files.
Defense POW/MIA Accounting Agency (DPAA), 241 18th Street S., Suite 800, Arlington, VA 22202-3420.
U.S. Military personnel designated by their Service Secretary or U.S. citizens by the U.S. Department of State as prisoners of war or missing in action (POW/MIA). The status applies to those POW or MIA during any campaign or hostile action involving U.S. Military intervention or declared war, and includes private citizens on personal travel that were detained or went missing in current or previous hostile fire/combat zones.
Name, date of birth, place of birth, branch of military service, serial/service number or DOD Identification (DoD ID)
The Social Security Number is no longer collected or used to retrieve records in this system.
10 U.S.C. 134, Under Secretary of Defense for Policy; 10 U.S.C. Chapter 76, Missing Persons (sections 1501 through 1513); and DoD Directive 5110.10, Defense Prisoner of War/Missing Personnel Office (DPMO).
To develop a detailed and comprehensive body of information concerning Department of Defense personnel and U.S. citizens who are known or may be prisoners of war or officially missing in order to provide the fullest possible accounting for our missing personnel to their families and the nation. Records are used to investigate the event and account for POW/MIA personnel. Data are also used to produce studies and analytical reports furnished as background material to offices and agencies that enunciate and promulgate National policy with respect to American military members and civilians designated as missing or prisoners of war as a result of campaigns or wars involving the U.S. Military.
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 therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To a domestic or foreign entity that has entered into a public-private partnership with the Defense POW/MIA Accounting Agency (DPAA) as authorized by 10 U.S.C. 1501a, when DPAA determines that such disclosure is necessary to the performance of services DPAA has agreed shall be performed by the partner.
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.
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 for the purpose of representing the Department of Defense, or any officer, employee or member of the Department in pending or potential litigation to which the record is pertinent.
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, electronic storage media, microfilm, and microfiche.
Retrieved by any or a combination of: Individual's name, serial/service number, date of birth, branch of military service, next of kin and/or requester's name, current address, personal telephone number, email address, or source reference number (in the case of a classified source).
Paper records, microfilm, and microfiche are maintained in a controlled access office and are stored in a secure vault work area. Access to electronic records is restricted by Common Access Card (CAC) and/or username/password which are changed periodically. All records are only accessible to authorized personnel with a demonstrated need for access. Personnel are properly screened, cleared, and trained in the protection of privacy information.
Permanent. Transfer legal custody to NARA 25 years after closure.
Defense Prisoner of War/Missing in Action Accounting Agency (DPAA), 2000 Defense Pentagon, Washington, DC 20301-2000.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Defense Prisoner of War/Missing in Action Accounting Agency (DPAA), 2000 Defense Pentagon, Washington, DC 20301-2000.
Signed written requests should include full name, serial/service number as appropriate (if any), and date of birth, branch of military service, if applicable, as well as the requester's current address and telephone number.
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
Individuals seeking access to information about themselves contained in this system of records should address written inquiries to Office of the Secretary of Defense/Joint Staff, Freedom of Information Requester Service Center, 1155 Defense Pentagon, Washington DC 20301-1155.
Signed written requests should include full name, serial/service number as appropriate (if any), and date of birth, branch of military service, if applicable, as well as the requester's current address, email address, telephone number, and the name and number of this system or 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 Office of the Secretary of Defense (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.
Department of Defense, Department of State and U.S. Intelligence Agencies, interviews and debriefings of returnees, next of kin, confidential sources, and other individuals; representatives of concerned organizations; resident aliens; foreign sources; and open publications.
Information specifically authorized to be classified under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).
An exemption rule for this system has been promulgated in accordance with requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c) and (e) and published in 32 CFR part 311. For additional information contact the system manager.
Department of Defense.
Notice of meeting.
The Department of Defense is publishing this notice to announce the following Federal Advisory Committee meeting of the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (“the Judicial Proceedings Panel” or “the Panel”). The meeting is open to the public.
A meeting of the Judicial Proceedings Panel will be held on Friday, October 14, 2016. The public session will begin at 9:00 a.m. and end at 4:30 p.m.
Judicial Proceedings Panel, One Liberty Center, 875 N. Randolph Street, Conference Room, 14th Floor, Arlington, Virginia 22203.
Ms. Julie Carson, Judicial Proceedings Panel, One Liberty Center, 875 N. Randolph Street, Suite 150, Arlington, Virginia 22203. Email:
Due to difficulties beyond the control of the Department of Defense, the Designated Federal Officer was unable to submit the
This public 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.
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 November 7, 2016.
Fred Licari, 571-372-0493.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 03F09, Alexandria, VA 22350-3100.
Office of the Secretary of Defense, DoD.
Notice to alter 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 alter a system of records, DHRA 12 DoD, entitled “Defense Injury and Unemployment Compensation System,” last published at 79 FR 19872, April 10, 2014. This system of records exists to administer Federal Employees Compensation Act claims in which individuals seek monetary, medical, and similar benefits for injuries or deaths sustained while performing assigned duties. Maintaining this record is necessary to provide counsel and assistance to employees regarding their entitlements and to conduct audits of such entitlements with concerned State Employment Security Agencies.
This update reflects administrative changes that in sum warrant an alteration to the systems of records notice. Information collected on the individual has been reduced by eliminating the Occupational Safety and Health Act initial notification report from the record; accordingly, the reference has been removed from the categories of records and the purpose sections of the notice. The source authority, 5 U.S.C. 85, Unemployment Compensation, has been included as the DoD policy is derived from this statute. Further, the applicable DoD Routine Uses have been incorporated in the notice to provide clarity for the public. There are also modifications to system identifier, system name, system location, retention and disposal, system manager(s) and address, and notification procedure.
Comments will be accepted on or before November 7, 2016. This proposed action will be effective on the date 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:
*
*
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 Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act, as amended, were submitted on September 20, 2016, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4 of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” revised November 28, 2000 (December 12, 2000 65 FR 77677).
Defense Injury and Unemployment Compensation System (April 10, 2014, 79 FR 19872).
Delete entry and replace with “DMDC 27 DoD.”
Delete entry and replace with “Defense Injury and Unemployment Compensation System (DIUCS).”
Delete entry and replace with “Defense Manpower Data Center, Denver Data Center, 1401 Del Norte Street, Denver, CO 80221-7143.”
Delete entry and replace with “Name, Social Security Number (SSN), claim number, date of birth, gender, home phone number, home address; component, occupation, assignment and duty location information; wages, benefits, entitlement data necessary to injury and unemployment claim management; Department of Labor/Office of Workers Compensation Programs (DOL/OWCP) claim status; authorization for medical care; related DoD personnel records such as, timekeeping and payroll data, reports descriptive of the incident and extent of injury for use in DOL/OWCP adjudication of the claim; reports related to payment of benefits through SESA offices, State where the claim for unemployment compensation was filed and approximate date filed with the SESA.”
Delete entry and replace with “10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; 5 U.S.C. 81, Compensation for Work Injuries; 5 U.S.C. 85, Unemployment Compensation; DoD Instruction (DoDI) 1400.25-V810, DoD Civilian Personnel Management System: Injury Compensation; DoDI 1400.25-V850, DoD Civilian Personnel Management System: Unemployment Compensation (UC); and E.O. 9397 (SSN), as amended.”
Delete entry and replace with “To manage FECA claims seeking monetary, medical, and similar benefits for injuries or deaths sustained while performing assigned duties.
Records are maintained for the purpose of auditing the State itemized listings of unemployment compensation charges, identifying erroneous charges and requesting credits from the SESAs, and tracking the charges to ensure that credits are received from the appropriate State jurisdictions.”
Routine uses of records maintained in the system, including categories of users and the purposes of such uses:
Delete entry and replace with “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 the Office of Personnel Management, Department of Labor and Social Security Administration for the purpose of ensuring appropriate payment of benefits.
Delete entry and replace with “Destroy closed claims 10 years after the case is closed by the Department of Labor and all related activity has ceased.”
Delete entry and replace with “DIUCS Program Manager, Defense Manpower Data Center, Enterprise Human Resources Information Systems Directorate, 4800 Mark Center Drive, Alexandria, VA 22350-4000.
Functional Program Manager, Defense Civilian Personnel Advisory Service, Human Resources Operational Programs and Advisory Service, 4800 Mark Center Drive, Alexandria, VA 22350-1100.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves relating to a workers compensation claim is contained in this system should address written inquiries to their designated Injury Compensation Program Administrator (ICPA), or contact the Defense Civilian Personnel Advisory Service, Human Resources Operational Programs and Advisory Service, 4800 Mark Center Drive, Alexandria, VA 22350-1100.
Signed, written requests regarding Unemployment Compensation should include the individual's full name, SSN, address, state where the claim for unemployment compensation was filed, and approximate date filed with the SESA.
Individuals seeking to determine whether information about themselves relating to SESA is contained in this system should address written inquiries to their designated Unemployment Compensation Program Administrator (UCPA), or contact the Defense Civilian Personnel Advisory Service, Human Resources Operational Programs and Advisory Service, 4800 Mark Center Drive, Alexandria, VA 22350-1100.
Signed, written requests regarding SESA should include the individual's full name, SSN, address, state where the claim for unemployment compensation was filed, and approximate date filed with the SESA.
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
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system of records should address written inquiries to the OSD/Joint Staff, Freedom of Information Act Requester Service Center, Office of Freedom of Information, 1155 Defense Pentagon, Washington, DC 20301-1155.
Signed, written requests should include the individual's full name, SSN, address, and the name and number of this system of records notice. If the request involves unemployment compensation, it should include the State where the claim for unemployment compensation was filed and approximate date filed with the SESA.
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).' ”
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of availability.
The U.S. Army Corps of Engineers (Corps) Seattle District has prepared a Draft Environmental Impact Statement (EIS) to analyze the direct, indirect, and cumulative effects of an action proposed by Millennium Bulk Terminals—Longview, LLC (MBTL) involving the Columbia River and adjacent waters of the United States. The Proposed Action is to construct and operate a shipping terminal to export up to 44 million metric tons of coal per year. Construction of the terminal and support facilities would result in the permanent loss of 29.3 acres of waters of the United States, consisting of 24.1 acres of wetlands and 5.2 acres of ditches and other waters. The proposed work requires Department of the Army authorization from the Corps under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act. The permit applicant is Millennium Bulk Terminals—Longview, LLC.
This Draft EIS was prepared in accordance with the National Environmental Policy Act (NEPA) of 1969, as amended, and Corps regulations for implementing NEPA (33 Code of Federal Regulations [CFR] Part 230 and Part 325, Appendix B). The Corps' Seattle District, is the lead federal agency, with the Environmental Protection Agency and U.S. Coast Guard participating as cooperating agencies. Information contained in this EIS will support a future decision regarding issuance of a Department of the Army permit under Sections 10 and 404. This EIS also provides information for state, local, and other Federal agencies having jurisdictional responsibility for the affected resources.
Written comments on the Draft EIS will be accepted thru November 29, 2016. Oral and/or written comments may also be presented at Public Hearings to be held Monday, October 24, 2016 at the Cowlitz County Regional Conference Center, 1900 7th Avenue, Longview, Washington and on Tuesday, October 25, 2016 at the Clark County Event Center, 17402 NE Delfel Road, Ridgefield, Washington. Each hearing is scheduled for 1:00 p.m. to 9:00 p.m., with a one-hour break between 4:00 p.m. and 5:00 p.m.
Send written comments regarding the Proposed Action and Draft EIS to Ms. Danette L. Guy, U.S. Army Corps of Engineers, Millennium Bulk Terminals—Longview NEPA EIS, c/o ICF International, 710 Second Avenue, Suite 550, Seattle, WA 98104. Comments may also be submitted online at
Ms. Danette L. Guy, Project Manager, U.S. Army Corps of Engineers, Seattle District, Regulatory Branch by email at
The purpose of the Draft EIS is to provide decision makers and the public information pertaining to the Proposed Action, including alternatives, environmental impacts, and mitigation measures that could reduce impacts of the action.
An electronic copy of the Draft EIS may be obtained by visiting the project Web site at
National Center for Education Statistics (NCES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before December 6, 2016.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact NCES Information Collections at
The Department of Education (ED), in
Take notice that on September 23, 2016, National Fuel Gas Supply Corporation (National Fuel), 6363 Main Street, Williamsville, New York 14221 filed in Docket No. CP16-506-000, filed a prior notice request pursuant to sections 157.205 and 157.216 of the Federal Energy Regulatory Commission's regulations under the Natural Gas Act (NGA) and National Fuel's blanket authorizations issued in Docket Nos. CP73-294-000. National Fuel seeks authorization to abandon on indicator well and associated facilities, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at
National Fuel proposes to abandon facilities in its East Branch Storage Field, located in McKean County, Pennsylvania. National Fuel proposes to abandon one indicator well, Well 841-P, and abandon in place the associated facilities. National Fuel states that based on the excessive cost to rehabilitate this well, it claims that the most prudent course of action is to abandon it and that the proposed abandonment will not result in a material decrease in service to customers.
Any questions regarding this Application should be directed to Laura P. Berloth, Attorney for National Fuel, 6363 Main Street, Williamsville, New York 14221, by phone (716) 857-7001, by fax (716) 857-7206, or by email at
Any person or the Commission's Staff may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Pursuant to Section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental impact statement (EIS) that will discuss the environmental impacts of the Driftwood LNG Project involving construction and operation of facilities by Driftwood LNG, LLC and Driftwood LNG Pipeline Company, LLC (collectively referred to as “DWLNG”) in Calcasieu, Jefferson Davis, Acadia, and Evangeline Parishes, Louisiana. The Commission will use this EIS in its decision-making process to determine whether the planned project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EIS. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before November 4, 2016.
If you sent comments on this project to the Commission before the opening of this docket on June 6, 2016, you will need to file those comments in Docket No. PF16-6-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this planned project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the planned facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” is available for viewing on the FERC Web site (
For your convenience, there are four methods you can use to submit your comments to the Commission. The Commission will provide equal consideration to all comments received, whether filed in written form or provided verbally. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (PF16-6-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
(4) In lieu of sending written or electronic comments, the Commission invites you to attend one of the public scoping sessions its staff will conduct in the project area, scheduled as follows:
The primary goal of these scoping sessions is to identify the specific environmental issues and concerns that should be considered and addressed in the EIS.
Commission staff will accept verbal comments between 5:00 and 8:30 p.m. There
Please note this is not your only public input opportunity; please refer to the review process flow chart in appendix 1.
DWLNG intends to construct a planned natural gas liquefaction and export facility in Calcasieu Parish, Louisiana, along the west side of the Calcasieu River, with a liquefaction capacity of about 26 million tonnes per annum (MTPA) of natural gas.
Additionally, DWLNG plans to construct 96 miles of pipeline in Calcasieu, Jefferson Davis, Acadia, and Evangeline Parishes, that would connect the liquefaction and export facility to the existing interstate U.S. natural gas grid.
The proposed facilities would consist of the following components: (1) Five LNG plants, each comprising one gas pre-treatment unit and four gas-turbine-driven Integrated Pre-cooled Single Mixed Refrigerant liquefaction units; (2) Three full-containment LNG storage tanks of approximately 250,000 m
DWLNG plans to commence construction in second quarter 2018 and expects to be ready to commence LNG exports in second quarter 2022.
The general location of the project facilities is shown in appendix 2.
The Driftwood LNG Project would be situated on the west side of the Calcasieu River in Calcasieu Parish, Louisiana, approximately five miles south of the town of Carlyss. The facility site would cover an area of approximately 800 acres. DWLNG would own or lease all of the land required for the facility and own, lease, or acquire the necessary rights of way on land required for the pipeline. At this time, DWLNG has purchased approximately 140 acres and has leased an additional 475 acres of the facility site with the right to enter into a long-term lease for up to a total of fifty years.
Following construction, DWLNG would maintain approximately 305 acres for permanent operation of the project's facilities; the remaining acreage would be restored and revert to former uses.
The project would include two non-jurisdictional facilities: Power supply and water/wastewater systems.
Power Supply: During normal operations electric power would be drawn from the power grid. Approximately 200 megawatts of electrical power would be required for the operation of the Facility. Power would be provided by the local electricity utility company. The Facility would have essential diesel generation capacity to generate sufficient electrical power to allow for lighting of safe egress, controlled shutdown of the facility in the event of a power failure from the main grid system and power for critical systems which may be required during storm events or emergency situations.
Water and Wastewater: The project would connect to the local parish municipality for water services (Calcasieu Parish Waterworks District). Connection to the municipal system would not require any modifications to the existing infrastructure. The project would install a packaged sanitary sewage treatment system.
Although FERC doesn't have the regulatory authority to modify or deny the construction of the above-described facilities, we will disclose available information regarding the construction impacts in the cumulative impacts section of our EIS.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EIS we will discuss impacts that could occur as a result of the construction and operation of the planned project under these general headings:
• Geology and soils;
• land use;
• water resources, fisheries, and wetlands;
• cultural resources;
• socioeconomics;
• vegetation and wildlife;
• air quality and noise;
• endangered and threatened species;
• public safety; and
• cumulative impacts.
We will also evaluate possible alternatives to the planned project or
Although no formal application has been filed, we have already initiated our NEPA review under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of interested stakeholders and to identify and resolve issues before the FERC receives an application. As part of our pre-filing review, we have begun to contact some federal and state agencies to discuss their involvement in the scoping process and the preparation of the EIS.
The EIS will present our independent analysis of the issues. We will publish and distribute the draft EIS for public comment. After the comment period, we will consider all timely comments and revise the document, as necessary, before issuing a final EIS. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section, beginning on page 2 on this notice.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues related to this project to formally cooperate with us in the preparation of the EIS.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for Section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Office (SHPO), and to solicit their views and those of other government agencies, interested Native American Tribes, and the public on the project's potential effects on historic properties.
We have already identified several issues that we think deserve attention based on a preliminary review of the planned facilities, the environmental information provided by DWLNG, comments received at DWLNG's open houses, and those comments filed to-date. This preliminary list of issues may change based on your additional comments and our analysis:
• Visual impacts;
• noise and air emissions;
• traffic; and
• cumulative impacts.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the planned project.
Copies of the completed draft EIS will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version, or would like to remove your name from the mailing list, please return the attached Information Request (appendix 3).
Once DWLNG files its application with the Commission, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings/sessions or site visits will be posted on the Commission's calendar located at
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j. California Department of Water Resources filed its request to use the Traditional Licensing Process on August 1, 2016. California Department of Water Resources provided public notice of its request on July 29 and August 1, 2016. In a letter dated September 30, 2016, the Director of the Division of Hydropower Licensing approved California Department of Water Resources' request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, part 402. We are also initiating consultation with the California State Historic Preservation Officer, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating California Department of Water Resources as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act and consultation pursuant to section 106 of the National Historic Preservation Act.
m. California Department of Water Resources filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site (
o. The licensee states its unequivocal intent to submit an application for a new license for Project No. 14797. Pursuant to 18 CFR 16.8, 16.9, and 16.10 each application for a new license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by January 31, 2020.
p. Register online at
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission or FERC) regulations, 18 Code of Federal Regulations Part 380, Office of Energy Projects staff has reviewed applications for original licenses for the Opekiska Lock and Dam Hydroelectric Project (FERC No. 13753-002), Morgantown Lock and Dam Hydroelectric Project (FERC No. 13762-002), Point Marion Lock and Dam Hydroelectric Project (FERC No. 13771-002), Grays Landing Lock and Dam Hydroelectric Project (FERC No. 13763-002), Maxwell Locks and Dam Hydroelectric Project (FERC No. 13766-002), and Monongahela Locks and Dam 4 (also known as Charleroi Locks and Dam) Hydroelectric Project (FERC No. 13767-002) on the Monongahela River. These projects are referred to collectively as the Monongahela River Projects.
The projects would all be located at existing locks and dams owned by the U.S. Army Corps of Engineers on the Monongahela River. The Opekiska Lock and Dam Hydroelectric Project would be located upstream of Fairmont, West Virginia, in Monongalia County at river mile (RM) 115.4. The Morgantown Lock and Dam Hydroelectric Project would be located downstream of Morgantown, West Virginia, in Monongalia County at RM 102. The Point Marion Lock and Dam Hydroelectric Project would be located near Point Marion, Pennsylvania, in Fayette County at RM 90.8. The Grays Landing Lock and Dam Hydroelectric Project would be located southwest of Masontown, Pennsylvania,
Staff has prepared a multi-project environmental assessment (EA) that analyzes the potential environmental effects of the six projects and concludes that constructing and operating the projects, with appropriate environmental protection measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
A copy of the EA is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
Any comments should be filed within 30 days from the date of this notice. The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
For further information, contact Nicholas Ettema at (202) 502-6565 or by email at
Take notice that the Federal Energy Regulatory Commission (Commission) will convene a technical conference on November 9, 2016, at the Commission's offices at 888 First Street NE., Washington, DC 20426 beginning at 10:00 a.m. and ending at 3:00 p.m. (Eastern Time). Commission staff will lead the conference, and Commissioners may attend.
Electric storage resources
Those wishing to participate in this conference should submit a nomination form online by 5:00 p.m. on October 14, 2016 at:
All interested persons may attend the conference, and registration is not required. However, in-person attendees are encouraged to register on-line at:
This conference will be transcribed and webcasted. Transcripts will be available immediately for a fee from Ace Reporting Company at (202) 347-3700. A link to the webcast of this event will be available in the Commission Calendar of Events at
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For information about the technical conference, please contact Rahim Amerkhail at (202) 502-8266,
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the proposed Marshall County Mine Panel 17W Project involving construction and operation of facilities by Texas Eastern Transmission, LP (Texas Eastern) in Marshall County, West Virginia. Texas Eastern indicates the project would excavate, elevate and/or replace certain sections of four different pipelines and appurtenant facilities located in Marshall County due to planned longwall mining activities. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before October 30, 2016.
If you sent comments on this project to the Commission before the opening of this docket on September 29, 2016, you will need to file those comments in Docket No. CP16-501-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
Texas Eastern provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC Web site (
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP16-501-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
Texas Eastern proposes to excavate and elevate 0.5-mile-sections of each of its Lines 10 (30-inch diameter), 15 (30-inch-diameter), 25 (36-inch-diameter) and 30 (36-inch-diameter) to minimize and monitor potential strains on the pipelines due to anticipated longwall mining activities of Marshall Coal. Concurrent with pipeline elevation, portions of two of the lines, Lines 10 and 15, would be replaced with new pipe to accommodate a minimum Class 2 design. All but two sections of Lines 10 and 15 will be removed. Texas Eastern will also perform maintenance activities on sections of Lines 25 and 30. The four mainline sections will be returned to natural gas service while remaining elevated using sandbags and skids during the longwall mining activities and potential ground subsidence. Once the mining-induced subsidence and the 2017-2018 heating season have both ended, the two sections of Lines 10 and 15 located within wetlands will be removed and the four elevated pipeline sections will be re-installed belowground, hydrostatically tested, and placed back into service.
The general location of the project facilities is shown in appendix 1.
Construction workspace would disturb about 54.7 acres of land for the pipeline excavation, elevation, and/or replacement. Following construction, Texas Eastern would maintain about 8.6 acres of existing right-of-way for permanent operation of the project's facilities; the remaining acreage would be restored and revert to former uses.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils;
• land use;
• water resources, fisheries, and wetlands;
• cultural resources;
• vegetation and wildlife;
• air quality and noise;
• endangered and threatened species;
• public safety; and
• cumulative impacts.
We will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section, beginning on page 2.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Office (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If we publish and distribute the EA, copies of the EA will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the “Document-less Intervention Guide” under the “e-filing” link on the Commission's Web site. Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
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l. With this notice, we are designating Co-Applicants as the Commission's non-federal representatives for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act and section 106 of the National Historic Preservation Act.
m. On August 1, 2016, Co-Applicants filed with the Commission a Pre-Application Document (PAD; including a proposed process plan and schedule), pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site (
Register online at
o. With this notice, we are soliciting comments on the PAD and Commission's staff Scoping Document 1 (SD1), as well as study requests. All comments on the PAD and SD1, and study requests should be sent to the address above in paragraph h. In addition, all comments on the PAD and SD1, study requests, requests for cooperating agency status, and all communications to and from Commission staff related to the merits of the potential application must be filed with the Commission.
The Commission strongly encourages electronic filing. Please file all documents using the Commission's eFiling system at
p. Although our current intent is to prepare an environmental assessment (EA), there is the possibility that an Environmental Impact Statement (EIS) will be required. Nevertheless, this meeting will satisfy the NEPA scoping requirements, irrespective of whether an EA or EIS is issued by the Commission.
Commission staff will hold two scoping meetings in the vicinity of the project at the times and places noted below. The daytime meeting will focus on resource agency, Indian tribes, and non-governmental organization concerns, while the evening meeting is primarily for receiving input from the public. We invite all interested individuals, organizations, and agencies to attend one or both of the meetings, and to assist staff in identifying particular study needs, as well as the scope of environmental issues to be addressed in the environmental document. The times and locations of these meetings are as follows:
Scoping Document 1 (SD1), which outlines the subject areas to be addressed in the environmental document, was mailed to the individuals and entities on the Commission's mailing list. Copies of SD1 will be available at the scoping meetings, or may be viewed on the web at
The potential applicant and Commission staff will conduct an Environmental Site Review (site visit) of the project on Wednesday October 25, 2016, starting at 9:00 a.m. and ending at or about 3:00 p.m. All participants should meet at Vista Del Lago Visitor's Center, located at 38500 Vista Del Lago Road, Gorman, California. Participants are responsible for their own transportation. Persons planning on participating in the site visit, or with questions about it, should contact Ms. Gwen Sholl of California Department of Water Resources at (916) 557-4554 or
Meeting participants should come prepared to discuss their issues and/or concerns. Please review the PAD in preparation for the scoping meetings. Directions on how to obtain a copy of the PAD and SD1 are included in item n. of this document.
The meetings will be recorded by a stenographer and will be placed in the public records of the project.
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Revision to FR Notice Published 09/02/2016; Extending Comment Period from 11/02/2016 to 11/17/2016
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is announcing plans to hold information sessions on: October 14, 2016 in Chicago, Illinois; October 20, 2016 in Orlando, Florida; November 7, 2016 in New York, New York; November 14, 2016 in San Francisco, California; November 15, 2016 in Los Angeles, California; and November 18, 2016 in Dallas, Texas.
The purpose of these sessions is to provide potential applicants with information about the implementation of the “Water Infrastructure Finance and Innovation Act of 2014” (WIFIA).
Under WIFIA, EPA will provide loans and loan guarantees for water infrastructure of national or regional significance. It was signed into law on June 11, 2014 as Public Law 113-121. EPA will provide an overview of the program's statutory and eligibility requirements, application and selection process, and creditworthiness assessment. It will also discuss examples of the potential cost-savings that WIFIA credit assistance could have for projects. The intended audience is potential WIFIA applicants including municipal entities, corporations, partnerships, and State Revolving Fund programs, as well as the private and
The session in Chicago, Illinois will be held on October 14, 2016 from 9:00 a.m.-3:30 p.m. (CT). The session in Orlando, Florida will be held on October 20, 2016 from 9:00 a.m.-3:30 p.m. (ET). The session in New York, New York will be held on November 7, 2016 from 9:00 a.m.-3:30 p.m. (ET). The session in San Francisco, California will be held on November 14, 2016 from 9:00 a.m.-3:30 p.m. (PT). The session in Los Angeles, California will be held on November 15, 2016 from 9:00 a.m.-3:30 p.m. (PT). The session in Dallas, Texas will be held on November 18, 2016 from 9:00 a.m.-3:30 p.m. (CT).
The session in Chicago will be held at: Ralph H. Metcalfe Federal Building, Room 328, 77 West Jackson Boulevard, Chicago, Illinois 60604. The session in Orlando will be held at: Orange County Utilities Administration Building, 1st Floor Public Meeting Room, 9150 Curry Ford Road, Orlando, Florida 32825. The session in New York will be held at: EPA Region 2, 290 Broadway, New York, New York 10007. The session in San Francisco will be held at: EPA Region 9, 75 Hawthorne St., San Francisco, California 94105. The session in Los Angeles will be held at: Los Angeles Federal Building, Room E, 300 North Los Angeles Street, Los Angeles, California 90012. The session in Dallas will be held at: EPA Region 6, Fountain Place, 1445 Ross Ave., Dallas, Texas 75202.
TO REGISTER: Please register at the following link:
For further information about this notice, including registration information, contact Karen Fligger, EPA Headquarters, Office of Water, Office of Wastewater Management at tel.: 202-564-2992; or email:
Water Infrastructure Finance and Innovation Act, Public Law 113-121.
United States Environmental Protection Agency (EPA).
Notice of draft permit.
The Environmental Protection Agency (EPA) Region 9 provides notice of, and requests public comment on, the EPA's draft general permit for use in Indian country within California pursuant to the Clean Air Act (CAA) Federal Indian Country Minor New Source Review (NSR) program for new and modified minor sources. The draft general permit is for a single source category, gasoline dispensing facilities (GDFs), and would be available in certain areas of Indian country that are within the geographical boundaries of California. This includes areas located in an Indian reservation or in another area of Indian country over which an Indian tribe, or the EPA, has demonstrated that the tribe has jurisdiction and where there is no EPA-approved minor NSR program in place. The EPA is proposing this general permit as an option for CAA minor NSR preconstruction permitting to help streamline the EPA's permitting of certain minor sources that construct or modify in Indian country and belong to the GDF source category.
Comments will be accepted until November 30, 2016.
Documents relevant to the above-referenced permit are available for public inspection during normal business hours at the following address: U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901. To arrange for viewing of these documents, call Lisa Beckham at (415) 972-3811. Due to building security procedures, at least 24 hours advance notice is required.
Lisa Beckham, EPA Region 9, (415) 972-3811,
The United States Environmental Protection Agency, Region 9 (EPA) provides notice of, and requests public comment on, the EPA's draft general permit for use in Indian country within California pursuant to the Clean Air Act (CAA) Federal Indian Country Minor New Source Review (NSR) program for new and modified minor sources at 40 CFR 49.151 through 49.161. The draft general permit is for a single source category, gasoline dispensing facilities (GDFs), and would be available in certain areas of Indian country that are within the geographical boundaries of California. This includes areas located in an Indian reservation or in another area of Indian country (as defined in 18 U.S.C. 1151) over which an Indian tribe, or the EPA, has demonstrated that the tribe has jurisdiction and where there is no EPA-approved minor NSR program in place. The EPA is proposing this general permit as an option for CAA minor NSR preconstruction permitting to help streamline the EPA's permitting of certain minor sources that construct or modify in Indian country and belong to the GDF source category.
A gasoline dispensing facility, or GDF, is any stationary source, such as a gas station, that dispenses gasoline into the fuel tank of a motor vehicle, motor vehicle engine, nonroad vehicle or nonroad engine. Types of GDFs potentially subject to this general permit include, but are not limited to, facilities that dispense gasoline into on- and off-road, street, or highway motor vehicles, lawn equipment, boats, test engines, landscaping equipment, generators, pumps, and other gasoline-fueled engines and equipment. New or modified GDF sources with the potential to emit regulated NSR pollutants over thresholds specified in the Federal Indian Country Minor NSR program regulations at 40 CFR 49.153, and located within the geographic boundaries of California and on an Indian reservation or in another area of Indian country over which an Indian tribe or the EPA has demonstrated that the tribe has jurisdiction, are currently subject to permitting requirements under this EPA minor NSR program.
The general permit that is the subject of this notice is intended to provide a streamlined permitting option for owners and operators of qualifying GDFs to use to meet the requirements of this EPA minor NSR program. However, owners and operators of such GDFs may instead choose to apply to the EPA for a traditional source-specific permit to meet the preconstruction requirements of this permitting program rather than
The primary pollutant of concern for GDFs that may use this general permit is volatile organic compounds (VOC), which are emitted from storage tanks and gasoline dispensing units at GDFs. Some GDFs may also have emergency engines, but only those sources with emergency engines that are exempt from minor NSR permitting requirements may use this general permit. Emissions of all other regulated NSR pollutants from new or modified GDF sources that may use the general permit are expected to be below the minor NSR permitting thresholds in 40 CFR 49.153.
This draft general permit regulates VOC emissions from GDFs, and includes emission limitations that require each GDF to control emissions from storage tanks during unloading of the gasoline cargo from the tanker truck, using what are known as Stage I controls. In addition, the draft general permit requires GDFs in ozone nonattainment areas to limit VOC emissions caused from vehicle refueling by recovering vapors displaced from the vehicle fuel tank, using pump-based controls known as Stage II controls. There are also limits on the amount of gasoline each GDF can dispense in a 12-month period: 25,000,000 million gallons in ozone attainment areas, marginal ozone nonattainment areas, and moderate ozone nonattainment areas; and 15,000,000 gallons in serious, severe, and extreme ozone nonattainment areas. The emission limitations in the draft general permit are expected to limit emissions of VOC from a new or modified GDF to less than 30 tons per year (tpy) in attainment areas and marginal or moderate ozone nonattainment areas and 8 tpy in serious, severe, and extreme ozone nonattainment areas. The detailed emission limitations are included in the draft permit and discussed in detail in our Technical Support Document for this draft permit, and are available for review here:
Any person may submit written comments on the draft permit during the public comment period. These comments must raise any reasonably ascertainable issue with supporting arguments by the close of the public comment period (including any public hearing). All written comments on the draft general permit must be received or postmarked by November 30, 2016. While the EPA has scheduled a public hearing for this action, as detailed below, anyone may request an additional public hearing. Requests for an additional public hearing must be submitted in writing by November 16, 2016, and must state the nature of the issues proposed to be raised at the hearing. Comments and any requests for public hearings must be sent or delivered in writing to Lisa Beckham at one of the following addresses:
The EPA will hold a public hearing, pursuant to 40 CFR 49.157(c), to provide the public with further opportunity to comment on the draft permit. At the public hearing, any interested person may provide written comments or oral comments, and relevant data pertaining to the draft permit.
The date, time, and location of the public hearing is as follows:
If you require a reasonable accommodation, please contact Stacy Johnson, EPA Region 9 Reasonable Accommodations Coordinator, by November 21, 2016 at (415) 947-4500, or
The draft general permit and other supporting information, including the Technical Support Document and a Request for Coverage form, are available through the EPA Region 9 Web site at
All comments that are received via email or through
Before issuing a final decision on the draft permit, the EPA will consider all written comments submitted during the public comment period. The EPA will send notice of our final permit decision to each person who submitted comments and contact information during the public comment period or requested notice of the final permit decision. The EPA will summarize the contents of all substantive comments and provide written responses in a document accompanying the EPA's final permit decision.
The EPA's final permit decision will become effective 30 days after the service of notice of the final permit decision, unless:
1. A later date is specified in the permit, or
2. Review of the final permit decision by the EPA's Environmental Appeals Board is requested under 40 CFR 49.159(d), or
3. The EPA elects to make the permit effective immediately upon issuance if no comments request a change in the draft permit or a denial of the permit. Issuance of the final general permit decision, after any administrative review under 40 CFR 49.159(d), is considered final agency action with respect to all aspects of the general permit except its applicability to an individual source. The sole issue that
If you have questions, or if you wish to obtain further information, please contact Lisa Beckham at (415) 972-3811, toll-free at (866) 372-9378, via email at
Please bring the foregoing notice to the attention of all persons who would be interested in this matter.
Notice.
Notice is hereby given of the regular meeting of the Farm Credit System Insurance Corporation Board (Board).
The meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on October 13, 2016, from 11:00 a.m. until such time as the Board concludes its business.
Farm Credit System Insurance Corporation, 1501 Farm Credit Drive, McLean, Virginia 22102. Submit attendance requests via email to
Dale L. Aultman, Secretary to the Farm Credit System Insurance Corporation Board, (703) 883-4009, TTY (703) 883-4056.
This meeting of the Board will be open to the public (limited space available). Please send an email to
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 invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control 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 Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before October 28, 2016.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
The Commission is requesting emergency OMB processing of the information collection requirement(s) contained in this notice and has requested OMB approval no later than 26 days after the collection is received at OMB. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
The 3.5 GHz Order established rules for commercial use of 150 megahertz in the 3.5 GHz Band and creates a new Citizens Broadband Radio Service. The rules create additional capacity for wireless broadband by adopting a new approach to spectrum management to facilitate more intensive spectrum sharing between commercial and federal users and among multiple tiers of commercial users. Freeing additional spectrum is one of the Commission's core spectrum policy goals and the President's Council of Advisors on Science and Technology recommended that this band would be particularly well suited for spectrum sharing.
Before the release of the 3.5 GHz Order, the band segment was currently reserved for use by Department of Defense (DoD) radar systems and commercial fixed satellite service (FSS) earth stations (in the 3600-3650 MHz portion of the band), as well as Grandfathered Wireless Broadband Radio Services. The
Incumbent users represent the highest tier in this framework and receive interference protection from Citizens Broadband Radio Service users. Protected incumbents include the federal operations and FSS earth stations described above and, for a finite period, Grandfathered Wireless Broadband Licensees. Non-federal incumbents must register the parameters of their operations with the Commission and/or an SAS to receive protection from Citizens Broadband Radio Service users.
On August 19, 2016, the Wireless Telecommunications Bureau (WTB) and Office of Engineering and Technology (OET) released a Public Notice adopting the final methodology for determining Grandfathered Wireless Protection Zones for existing licensees in the 3650-3700 MHz band, establishing a baseline contour used to protect these areas.
The Commission's rules establishing registration and construction requirements for Grandfathered Wireless Broadband Licensees are intended to distinguish between “real” networks that that have received substantial investment and provide socially productive service from “paper networks” whose only effect is to restrict spectrum accessible by the Citizens Broadband Radio Service. The revised information collection under sections 96.21(a)(1) and (2) will help the Commission and the SASs protect these existing networks from interference during the transition period while promoting spectral access and efficiency by new users in the band and is an important step in making this band available for commercial use. Further, the information will allow the licensees that have invested in such networks to receive interference protection as afforded by the rules.
Federal Communications Commission.
Notice.
In this document, the International Bureau (Bureau) affords Redes Modernas de la Frontera SA de CV (Redes) final notice and opportunity to respond to the April 13, 2016 letter submitted by the Department of Homeland Security (DHS), with the concurrence of the Department of Justice (DOJ) (collectively “the Agencies”) requesting that the FCC terminate, declare null and void and no longer in effect the international section 214 authorization issued to Redes under file number ITC-214-20070515-00189.
Submit comments on or before October 24, 2016.
The Bureau is serving a copy of the Public Notice on Redes by certified mail, return receipt requested,
For further information, please contact Veronica Garcia-Ulloa, Attorney Advisor, Telecommunications and Analysis Division, International Bureau, (202) 418-0481.
In the Executive Branch April 13, 2016 Letter, the Agencies state that Redes is no longer in business. The Agencies indicate that they issued their non-objection to the Commission granting the authorization provided that Redes abide by the commitments and undertakings contained in the July 10, 2007 Letter that Redes entered into with the Agencies. On July 5, 2016, the Bureau's Telecommunications and Analysis Division sent a letter to Redes at the last known addresses on record via certified, return receipt mail, asking Redes to respond to the Agencies' allegations by August 3, 2016. The Bureau July 5, 2016 Letter stated that failure to respond would result in the issuance of an order to terminate Redes' international section 214 authorization. Redes did not respond to the request. The FCC Form 499 Database states that Redes is no longer active as of May 1, 2009, and that the company has gone out of business in its entirety.
In addition, Redes may also be in violation of several other Commission rules and requirements. After having received an international section 214 authorization, pursuant to section 63.21(a), a carrier “is responsible for the continuing accuracy of the certifications made in its application” and must correct information no longer accurate, “and in any event, within thirty (30) days.” There is no indication that Redes is currently providing service pursuant to its international section 214 authorization. If Redes has discontinued service that affected customers, it may also be in violation of section 63.19(a) of the Commission's rules requiring prior notification for such a discontinuance. As part of its authorization, Redes must file annual international telecommunications traffic and revenue as required by section 43.62 of the Commission rules. Section 43.62(b) states that “[n]ot later than July 31 of each year, each person or entity that holds an authorization pursuant to section 214 to provide international telecommunications service shall report
Redes' failure to respond to this Public Notice will be deemed as an admission of the facts alleged by the Agencies and of the violations of the statutory and rule provisions set out above. The Bureau hereby provides final notice to Redes that it intends to take action to declare Redes' international 214 authorization terminated for failure to comply with conditions of its authorization. We further advise Redes that its non-compliance with the applicable regulatory provisions would warrant termination wholly apart from demonstrating Redes' inability to satisfy the conditions of its authorization. Redes must respond to this Public Notice and address the issues alleged in the Executive Branch April 13, 2016 Letter, no later than 15 days after publication in the
The proceeding in this Notice shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
The Federal Deposit Insurance Corporation (FDIC), as Receiver for 10281 Independent National Bank, Ocala, Florida (Receiver) has been authorized to take all actions necessary to terminate the receivership estate of Independent National Bank (Receivership Estate); the Receiver has made all dividend distributions required by law.
The Receiver has further irrevocably authorized and appointed FDIC-Corporate as its attorney-in-fact to execute and file any and all documents that may be required to be executed by the Receiver which FDIC-Corporate, in its sole discretion, deems necessary; including but not limited to releases, discharges, satisfactions, endorsements, assignments and deeds.
Effective October 1, 2016, the Receivership Estate has been terminated, the Receiver discharged, and the Receivership Estate has ceased to exist as a legal entity.
The Federal Deposit Insurance Corporation (FDIC), as Receiver for 10159 Valley Capital Bank, N.A., Mesa, Arizona (Receiver) has been authorized to take all actions necessary to terminate the receivership estate of Valley Capital Bank, N.A. (Receivership Estate); the Receiver has made all dividend distributions required by law.
The Receiver has further irrevocably authorized and appointed FDIC-Corporate as its attorney-in-fact to execute and file any and all documents that may be required to be executed by the Receiver which FDIC-Corporate, in its sole discretion, deems necessary; including but not limited to releases, discharges, satisfactions, endorsements, assignments and deeds.
Effective October 1, 2016, the Receivership Estate has been terminated, the Receiver discharged,
The Federal Deposit Insurance Corporation (FDIC), as Receiver for 10082 Temecula Valley Bank, Temecula, California (Receiver) has been authorized to take all actions necessary to terminate the receivership estate of Temecula Valley Bank (Receivership Estate); the Receiver has made all dividend distributions required by law.
The Receiver has further irrevocably authorized and appointed FDIC-Corporate as its attorney-in-fact to execute and file any and all documents that may be required to be executed by the Receiver which FDIC-Corporate, in its sole discretion, deems necessary; including but not limited to releases, discharges, satisfactions, endorsements, assignments and deeds.
Effective October 1, 2016, the Receivership Estate has been terminated, the Receiver discharged, and the Receivership Estate has ceased to exist as a legal entity.
Federal Housing Finance Agency.
60-Day notice of submission of information collection for approval from Office of Management and Budget.
In accordance with the requirements of the Paperwork Reduction Act of 1995, the Federal Housing Finance Agency (FHFA or the Agency) is seeking public comments concerning the currently-approved information collection known as “Federal Home Loan Bank Capital Stock,” which has been assigned control number 2590-0002 by the Office of Management and Budget (OMB) (the collection was previously known as “Capital Requirements for the Federal Home Loan Banks”). FHFA intends to submit the information collection to OMB for review and approval of a three-year extension of the control number, which is due to expire on December 31, 2016.
Interested persons may submit comments on or before December 6, 2016.
Submit comments to FHFA, identified by “Proposed Collection; Comment Request: `Federal Home Loan Bank Capital Stock, (No. 2016-N-09)' ” by any of the following methods:
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We will post all public comments we receive without change, including any personal information you provide, such as your name and address, email address, and telephone number, on the FHFA Web site at
Jonathan F. Curtis, Financial Analyst, Division of Federal Home Loan Bank Regulation, at (202) 649-3321, by email at
The Federal Home Loan Bank System consists of eleven regional Federal Home Loan Banks (Banks) and the Office of Finance (a joint office that issues and services the Banks' debt securities). The Banks are wholesale financial institutions, organized under authority of the Federal Home Loan Bank Act (Bank Act) to serve the public interest by enhancing the availability of residential housing finance and community lending credit through their member institutions and, to a limited extent, through certain eligible nonmembers. Each Bank is structured as a regional cooperative that is owned and controlled by member institutions located within its district, which are also its primary customers. An institution that is eligible for membership in a particular Bank must purchase and hold a prescribed minimum amount of the Bank's capital stock in order to become and remain a member of that Bank. With limited exceptions, only an institution that is a member of a Bank may obtain access to low cost secured loans, known as advances, or other products provided by that Bank.
Section 6 of the Bank Act establishes capital requirements for the Banks and requires FHFA to issue regulations prescribing uniform capital standards applicable to all of the Banks.
Both the Bank Act and FHFA's regulations state that a Bank's capital plan must require its members to maintain a minimum investment in the Bank's capital stock, but both permit each Bank to determine for itself what that minimum investment is and how each member's required minimum investment is to be calculated.
A Bank must collect information from its members to determine the minimum capital stock investment each member is required to maintain at any point in time. Although the information needed to calculate a member's required minimum investment and the precise method through which it is collected differ somewhat from Bank to Bank, the Banks typically collect two types of information. First, in order to calculate and monitor compliance with its membership stock purchase requirement, a Bank typically requires each member to provide and/or confirm a quarterly report on the amount and types of assets held by that institution. Second, each time a Bank engages in a business transaction with a member, the Bank typically confirms with the member the amount of additional Bank capital stock, if any, the member must acquire in order to satisfy the Bank's activity-based stock purchase requirement and the method through which the member will acquire that stock.
The OMB number for the information collection is 2590-0002, which is due to expire on December 31, 2016. The likely respondents include current and former Bank members and institutions applying for Bank membership.
FHFA has analyzed the time burden imposed on respondents by the two collections under this control number and estimates that the average total annual hour burden imposed on all respondents over the next three years will be 33,818 hours. The estimate for each collection was calculated as follows:
FHFA estimates that the average annual number of current and former members and applicants for membership required to report information needed to calculate a membership stock purchase requirement will be 7,320, and that each institution will submit 4 quarterly reports per year, resulting in an estimated total of 29,280 submissions annually. The estimate for the average time required to prepare, review, and submit each report is 0.71 hours. Accordingly, the estimate for the annual hour burden associated with membership stock purchase requirement submissions is (29,280 reports × 0.71 hours per report) = 20,789 hours.
FHFA estimates that the average number of daily transactions between Banks and members that will require the exchange of information to confirm the member's activity-based stock purchase requirement will be 312, and that there will be an average of 261 working days per year, resulting in an estimated 81,432 submissions annually. The estimate for the average preparation time per submission is 0.16 hours. Accordingly, the estimate for the annual hour burden associated with activity-based stock purchase requirement submissions is (81,432 submissions × 0.16 hours per submission) = 13,029 hours.
FHFA requests written comments on the following: (1) Whether the collection of information is necessary for the proper performance of FHFA functions, including whether the information has practical utility; (2) The accuracy of FHFA's estimates of the burdens of the collection of information; (3) Ways to enhance the quality, utility, and clarity of the information collected; and (4) Ways to minimize the burden of the collection of information on survey respondents, including through the use of automated collection techniques or other forms of information technology.
Federal Housing Finance Agency.
60-Day notice of submission of information collection for approval from Office of Management and Budget.
In accordance with the requirements of the Paperwork Reduction Act of 1995, the Federal Housing Finance Agency (FHFA or the Agency) is seeking public comments concerning the currently-approved information collection known as “Members of the Banks,” which has been assigned control number 2590-0003 by the Office of Management and Budget (OMB). FHFA intends to submit the information collection to OMB for review and approval of a three-year extension of the control number, which is due to expire on December 31, 2016.
Interested persons may submit comments on or before December 6, 2016.
Submit comments to FHFA, identified by “Proposed Collection; Comment Request: `Members of the Banks, (No. 2016-N-10)' ” by any of the following methods:
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We will post all public comments we receive without change, including any personal information you provide, such as your name and address, email address, and telephone number, on the FHFA Web site at
Jonathan F. Curtis, Financial Analyst, Division of Federal Home Loan Bank Regulation, by email at
The Federal Home Loan Bank System consists of eleven regional Federal Home Loan Banks (Banks) and the Office of Finance (a joint office that issues and services the Banks' debt securities). The Banks are wholesale financial institutions, organized under authority of the Federal Home Loan Bank Act (Bank Act) to serve the public interest by enhancing the availability of residential housing finance and community lending credit through their member institutions and, to a limited extent, through certain eligible nonmembers. Each Bank is structured as a regional cooperative that is owned and controlled by member institutions located within its district, which are also its primary customers. The Banks carry out their public policy functions primarily by providing low cost loans, known as advances, to their members. With limited exceptions, an institution may obtain advances and access other products and services provided by a Bank only if it is member of that Bank.
The Bank Act limits membership in any Bank to specific types of financial institutions located within the Bank's district that meet specific eligibility requirements. Section 4 of the Bank Act specifies the types of institutions that may be eligible for membership and establishes eligibility requirements that each type of applicant must meet in order to become a Bank member.
FHFA's regulation entitled “Members of the Banks,” located at 12 CFR part 1263, implements those statutory provisions and otherwise establishes substantive and procedural requirements relating to the initiation and termination of Bank membership. Many of the provisions in the membership regulation require that an institution submit information to a Bank or to FHFA, in most cases to demonstrate compliance with statutory or regulatory requirements or to request action by the Bank or Agency.
In total, there are four types of information collections that may occur under part 1263. First, the regulation provides that (with limited exceptions) no institution may become a member of a Bank unless it has submitted to that Bank an application that documents the applicant's compliance with the statutory and regulatory membership eligibility requirements and that otherwise includes all required information and materials.
The Banks use most of the information collected under part 1263 to determine whether an applicant satisfies the statutory and regulatory requirements for Bank membership and should be approved as a Bank member. The Banks may use some of the information collected under part 1263 as a means of learning that a member wishes to withdraw or to transfer its membership to a different Bank so that the Bank can begin to process those requests. In rare cases, FHFA may use the collected information to determine whether an institution that has been denied membership by a Bank should be permitted to become a member of that Bank.
The OMB control number for this information collection is 2590-0003, which is due to expire on December 31, 2016. The likely respondents are financial institutions that are, or are applying to become, Bank members.
FHFA has analyzed the time burden imposed on respondents by the four collections under this control number and estimates that the average annual burden imposed on all respondents by those collections over the next three years will be 2,193 hours. This estimate is derived from the following calculations:
FHFA estimates that the average number of applications for Bank membership submitted annually will be 151 and that the average time to prepare and submit an application and supporting materials will be 11.7 hours. Accordingly, the estimate for the annual hour burden associated with preparation and submission of applications for Bank membership is (151 applications × 11.7 hours per application) = 1,767 hours.
FHFA estimates that the average number of applicants that have been denied membership by a Bank that will appeal such a denial to FHFA will be 1 and that the average time to prepare and submit an application for appeal will be 10 hours. Accordingly, the estimate for the annual hour burden associated with the preparation and submission of membership appeals is (1 appellants × 10 hours per application) = 10 hours.
FHFA estimates that the average number of Bank members submitting a notice of intent to withdraw from membership annually will be 276 and that the average time to prepare and submit a notice will be 1.5 hours. Accordingly, the estimate for the annual hour burden associated with
FHFA estimates that the average number of Bank members submitting a request for automatic transfer to another Bank will be 1 and that the average time to prepare and submit a request will be 1.5 hours. Accordingly, the estimate for the annual hour burden associated with preparation and submission of requests for automatic transfer is (1 transferring member × 1.5 hours per request) = 1.5 hours.
FHFA requests written comments on the following: (1) Whether the collection of information is necessary for the proper performance of FHFA functions, including whether the information has practical utility; (2) The accuracy of FHFA's estimates of the burdens of the collection of information; (3) Ways to enhance the quality, utility, and clarity of the information collected; and (4) Ways to minimize the burden of the collection of information on survey respondents, including through the use of automated collection techniques or other forms of information technology.
Office of Government-wide Policy (OGP), General Services Administration (GSA).
Notice of meeting.
The Interagency Per Diem Working Group (IPDWG) is meeting to discuss studying the process of setting continental United States (CONUS) Non-Standard Area (NSA) boundaries for lodging maximum reimbursement rates and meals and incidental expense (M&IE) per diem reimbursement rates. The purpose of the study would be to recommend whether the NSA boundary-setting process should be replaced, changed, or maintained as is. Interested parties are invited to attend and provide comments.
The meeting will be held on Thursday, October 27, 2016, beginning at 10:00 a.m. Eastern Standard Time, ending no later than 3:00 p.m. Eastern Standard Time.
The meeting will be held in the GSA Auditorium, located at the GSA Central Office, 1800 F Street NW., Washington, DC, 20405.
Mr. Cy Greenidge, Office of Government-wide Policy, Office of Asset and Transportation Management, at 202-219-2349, or by email at
Pursuant to 5 U.S.C. 5702, the Administrator of General Services (GSA) sets the maximum lodging allowance and M&IE reimbursement rates for CONUS locations. Each year, GSA sets a standard maximum lodging allowance and M&IE reimbursement rates to cover the majority of CONUS. GSA also sets individual rates for each established NSA. The current methodology for setting rates was established by an independent Federal Advisory Committee in 2006. Another Federal Advisory Committee, chartered in 2013, validated the existing methodology. The latter Committee had a full briefing and discussed the overall per diem methodology, but did not specifically evaluate setting NSA boundaries.
Under the current methodology, NSA boundaries are set as a single county unless an exception is made. As of FY2017, 68 of the 346 CONUS NSAs, or approximately 20 percent, have an exception for one of three reasons: (1) Historically the boundary was set that way, (2) an agency requested that a one-county boundary be adjusted to meet official needs, or (3) the survey methodology required inclusion of multiple counties to have sufficient data to establish a rate.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice.
The Centers for Disease Control and Prevention (CDC), located within the Department of Health and Human Services (HHS) announces reopening of the National Center for Health Statistics' (NCHS) National Health and Nutrition Examination Survey (NHANES) DNA Specimen Repository for research proposals. Blood samples for DNA purification were collected from study participants during NHANES III, NHANES 1999-2000, NHANES 2001-02, NHANES 2007-08, and NHANES 2009-10 (Office of Management and Budget Control Numbers 0920-0237/0920-0950). Samples from these DNA Specimens are being made available to the research community for genetic testing. The information gained from research using these samples can be combined with the extensive amount of information available in NHANES which describes the prevalence/trends of disease, nutrition, risk behaviors, and environmental exposures in the US population. A more complete description of this program follows.
Sections 301, 306 and 308 of the Public Health Service Act (42 U.S.C. 241, 2421 and 242m).
NHANES is a program of periodic surveys conducted by NCHS. Examination surveys conducted since 1960 by NCHS have provided national estimates of the health and nutritional status of the U.S. civilian non-institutionalized population. The goals of NHANES are (1) to estimate the number and percentage of people in the U.S. population and designated subgroups with selected diseases and risk factors for those diseases; (2) to monitor trends in the prevalence, awareness, treatment and control of selected diseases; (3) to monitor trends in risk behaviors and environmental exposures; (4) to analyze risk factors for selected diseases; (5) to study the relation among diet, nutrition and health; (6) to explore emerging public health issues and new technologies; and (7) to establish and maintain a national probability sample of baseline information on health and nutritional status.
The availability of the NHANES III DNA specimens has been previously announced in 2002 (67 FR 51585), 2006 (71 FR 22248), 2007 (72 FR 59094), 2009 (74 FR 45644), and 2010 (75 FR 32191). NHANES III Phase II DNA specimens (1991-1994) are from participants ages 12 or older (
Beginning in 1999, NHANES became a continuous, annual survey rather than a periodic survey. For a variety of reasons, including disclosure and reliability issues, the survey data are released as public use data files every two years. In addition to the analysis of data from any two year cycle, it is possible to combine two cycles to increase sample size and analytic options. Blood samples for DNA purification were collected from participants aged 20 years and older in survey years 1999-2002 and 2007-12. DNA specimens are available as collections from NHANES 1999-2002 (NHANES 1999-2000 and 2001-02 specimens available as one collection), and NHANES two-year cycles 2007-08 and 2009-10(
Identifiable health information collected in the NHANES is kept in strictest confidence. During the informed consent process, survey participants are assured that data collected will be used only for stated purposes and will not be disclosed or released to others without the consent of the individual in accordance with section 308(d) of the Public Health Service Act (42 U.S.C. 242m). During NHANES III, participants 12 years and older (parent or guardian signed the consent form if the participant was under age 18 years) signed a consent form to store a sample of their blood for future research. In NHANES 1999-2002, 2007-08 and 2009-10 a separate consent form was signed by eligible participants who agreed to the storing of specimens for future genetic research. DNA specimens will be available for testing only from participants who consented to future genetic research. Resulting data from DNA specimen testing will be linked to the NCHS variables (public use and restricted) and available for analyses through an NCHS Research Data Center (RDC). Access to these data at an NCHS RDC is only through an approved proposal process mechanism to assure confidentiality.
Proposals testing a complete NHANES DNA collection of specimens (NHANES III, 7,159 samples; NHANES 1999-2002, 7,839 specimens; NHANES 2007-08, 4,612 specimens; NHANES 2009-10, 4,893 specimens):
After the DHANES/NCHS has completed the initial quality control assessment, investigators will be given up to six months to conduct a comprehensive quality assurance review. The timeframe allowed for this review will depend on the number and characteristics of the tests submitted. At the completion of this review, the availability of the resulting data will be announced to the public on the NHANES Web site Genetic Variant Search:
DNA specimen collections will be provided in 96 well plates to investigators and distributed as samples from a complete collection or from a subsample of a collection.
These DNA specimens (NHANES III, NHANES 1999-2002, NHANES 2007-08 and NHANES 2009-10) were processed by the Centers for Disease Control and Prevention (CDC), National Center for Environmental Health (NCEH), Division of Laboratory Sciences (DLS).
The laboratory will distribute aliquots (samples) of crude DNA lysates extracted from cell lines. DNA concentrations vary and are estimated to range from 7.5-65.0 ng/μL with an average of approximately four micrograms in 100 μL. Samples will be provided in 96 well plates that are bar-coded and labeled with a readable identifier. Quality control samples (5% of the total) will be sent at no charge, on separate plates as blind replicates. DNA specimens are available from 7,159 NHANES III participants. Samples will be distributed in a total of 78 plates with an additional four plates of quality control samples. NHANES III DNA specimens are in limited supply thus are not available as a partial set. Due to the method of extraction, NHANES III DNA specimens are not appropriate for all projects and/or assays.
The laboratory will distribute aliquots of purified, high molecular DNA in normalized concentrations of 50.0 ng/μL. Some specimens may fall below this threshold. A sample of 40 microliters of each specimen will be supplied. The amount of DNA in each sample may vary but will be on average approximately two micrograms.
There are purified DNA specimens from 7,839 NHANES 1999-2002 participants. Samples from these specimens will be distributed into 90 plates including four plates of quality control samples.
There are purified DNA specimens available from 4,612 NHANES 2007-08 participants. These will be distributed into approximately 54 plates including three plates of quality control samples.
There are purified DNA specimens available from 4,893 NHANES 2009-10 participants. Samples from the specimens will be distributed into 54 plates with approximately three additional plates of quality control samples.
Each 96 well plate will be bar-coded and labeled with a readable identifier. Quality control samples (5% of a collection) will be sent at no charge, on separate plates as blind replicates.
Costs are determined by NCHS and include costs incurred from the contracting DNA Repository and DHANES administrative costs. The fee covers the costs of materials, equipment, labor, proposal review, administration and space for storage. For more details see Table 1 below. In prior years, the DNA Repository was maintained by CDC. The DNA Repository is now maintained by a private contractor. The costs of contracting, along with annual inflation increases, are reflected in the proposed cost schedule.
The investigator should follow these instructions for preparation of proposals. Protocols must be written using the outline below.
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DNA Specimen Program will begin accepting research proposals on December 6, 2016.
In addition to the cover page, the research proposal should contain the title of the research project, the name, address phone number and Email address of the lead investigator along with the name of the institution where the testing will be conducted. Office of Human Research Protections assurance numbers for the institutions engaged in the research project should be included. CDC investigators need to include their Scientific Ethics Verification Number. Email submission of the proposal is required.
The proposals should be a maximum of 20 single-spaced typed pages, excluding figures and tables. Please use appendices sparingly. If a proposal is approved, the title, specific aims, name, and phone number of the author will be maintained by NCHS and released if requested by the public. Unapproved proposals will be returned to the investigator and will not be maintained by NCHS.
Applications will have a Scientific Review by the Genetic Project Officer and the Technical Panel. The Technical Panel is comprised of two members: A Genetic Research Scientist and a Genetic Epidemiologist. The members review each proposal for scientific and technical merit.
After the proposal is approved by the Genetic Technical Panel and the Genetic Project Officer it will be submitted for Institutional review. All proposals will undergo Institutional Review by the NCHS Human Subjects Contact and the NCHS Ethics Review Board (ERB) for any potential human subjects concerns to ensure appropriate human subjects protections are provided in compliance with 45 CFR 46, and by the NCHS Confidentiality Officer for disclosure risk. The ERB will review the proposal even if the investigator has received approval by their institutional review panel.
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(A) Describe the public health significance of the proposed research.
(B) Discuss how the results will be used. Analyses should be consistent with the NHANES mission to assess the health of the nation. The Scientific Review will ensure that the proposed project does not go beyond either the general purpose for collecting the blood samples for DNA in the survey or the specific stated goals of the proposal.
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Data resulting from use of DNA specimens will be made available to the public for secondary data analyses via the NCHS RDC. After DHANES/NCHS quality control assessment is completed, investigators will be given up to six months to conduct comprehensive quality assurance review in the NCHS RDC. The quality assurance review timeframe will be negotiated between the investigator and the NHANES Genetic Project Officer and will depend on the type, number, and characteristics of the tests submitted. The results of the quality assurance review will be provided to DHANES/NCHS and appropriate aspects will become part of the data set documentation. The public announcement, that test results are available for submission of proposals for secondary data analyses, will occur once the quality assurance review timeframe has ended. For a list of currently available variant data see:
Proposals for secondary data analyses linking NCHS restricted data, NCHS public use data, or non-NCHS data to data resulting from DNA specimen testing will be reviewed by the NCHS RDC. See
Proposals can be submitted immediately. The review process will begin approximately 60 days from the publication of the notice and will include all proposals submitted as of that date.
Electronic submission of proposals are required. Please submit proposals to the NHANES Genetic Project Officer: Jody McLean M.P.H., Division of Health and Nutrition Examination Surveys, National Center for Health Statistics, Centers for Disease Control and Prevention, 3311 Toledo Road, Hyattsville, MD 20782, Phone: 301-458-4683, EMail:
Investigators must secure funding and sign terms and conditions agreements for the use of the DNA specimens with CDC/NCHS prior to the release of the NHANES DNA samples. Investigators must agree to use the specimens only for the approved tests and use the test results only for purposes as stated in the approved proposal, not link the results of the proposed research to any other data, and not use the DNA specimens for commercial purposes via a legally binding Materials Transfer Agreement for non-government researchers or Interagency Agreement for government researchers. In addition, all investigators will be required to sign a Designated Agent Agreement (DAA) with CDC/NCHS in accordance with NCHS' confidentiality legislation, the Confidential Information Protection and Statistical Efficiency Act (CIPSEA; Title V of the E-Government Act of 2002 (Pub. L. 107-347)). The DAA is the mechanism by which CDC/NCHS may authorize designation of agents to exclusively perform activities needed to produce approved data on CIPSEA protected NHANES DNA specimens.
After DNA samples are received and testing is complete, the resulting data will be sent back to DHANES/NCHS for quality control (QC) assessment. While DHANES/NCHS QC assessment is under way the investigator can submit a NCHS RDC proposal to conduct comprehensive quality assurance review. Once the investigator's quality assurance review is complete and the
After the comprehensive quality assessment process has been completed by the investigator, a list of variants generated from NHANES specimen testing will be made available to the public for potential solicitation via NCHS RDC proposals. The list of variants will be available in the NHANES Genetic Variant Search (
A progress report will be submitted in the annual CDC/NCHS/ERB continuation report. An ERB continuation form will be sent to the investigator each year for project update. If an approved proposal is unable to obtain funding the proposal will be closed.
At the end of laboratory testing the ERB Protocol will be closed.
The provided DNA samples cannot be used for any purpose other than the specifically requested purpose outlined in the proposal and approved through the Scientific and Institutional Review. No DNA samples can be shared with others, including other investigators, unless specified in the proposal and so approved. Samples must be returned upon completion of the approved project or destroyed only with the written approval of the NHANES Genetic Project Officer. Test results from all studies using NHANES DNA specimens will be made available to the public for secondary data analyses. After the DHANES/NCHS quality control assessment is completed, investigators will be given up to six months to conduct a more comprehensive quality assurance review. The final quality assurance review timeframe will be negotiated between the researcher and the NHANES Genetic Project Officer and characteristics of the tests submitted. Proposals for secondary data analyses will be reviewed by the NCHS RDC on a rolling basis; see:
The agenda is subject to change as priorities dictate.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC), in the Department of Health and Human Services (HHS) announces the opening of a docket to obtain public comment on the redesign of the National Health Interview Survey (NHIS) questionnaire (OMB Control No. 0920-0214, expires 01/31/2019) Any proposed changes will be submitted in future notices in compliance with the Paperwork Reduction Act (PRA). The content and structure of the NHIS will be updated in 2018 to improve the measurement of covered health topics, reduce respondent burden by shortening the length of the questionnaire, harmonize overlapping content with other federal health surveys, establish a long-term structure of ongoing and periodic topics, and incorporate advances in survey methodology and measurement.
Written comments must be received on or before November 7, 2016.
You may submit comments, identified by Docket No. CDC-2016-0092 by any of the following methods:
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Marcie Cynamon, Director, of the Division of Health Interview Statistics, National Center for Health Statistics, 3311 Toledo Road, MS-P08, Hyattsville, MD 20782-2064, phone: (301) 458-4174.
The National Center for Health Statistics (NCHS) is redesigning the National Health Interview Survey (NHIS) to be fielded in 2018. The NHIS is the principal source of information on the health of the civilian noninstitutionalized population of the United States. Established by the National Health Survey Act of 1956, the survey has been in the field continuously since July 1957. NHIS data are used widely throughout the Department of Health and Human Services (HHS) to monitor trends in illness and disability and to track progress toward achieving national health objectives. The data are used by HHS and the public health research community in determining barriers to accessing and using health care services, and in tracking those health conditions and behaviors related to the leading causes of morbidity and mortality.
The redesigned NHIS questionnaire and survey structure will be introduced in January 2018. The redesign process presents an opportunity to (1) ensure the survey is capturing the current health and health care needs of individuals in the United States and producing data of the highest-possible quality; and (2) reduce respondent burden by shortening the overall questionnaire length and harmonizing its content with other federal health surveys. The redesign is strategically timed to coordinate with the data cycle used to monitor Healthy People 2020 objectives, providing a clean transition into the next decade of monitoring the nation's critical public health indicators. The redesigned questionnaire reflects advances in survey methodology and measurement since the last NHIS redesign in 1997. This proposal incorporates a long-term structure for the content of the survey. There will be content that remains on the survey each year and content that will be collected on a rotating basis (collected for one or two years, off for one year). The periodicity of rotating content will be established several years in advance. Approximately 15 to 20 minutes of interview time each year will be reserved for sponsored content that addresses the data needs of other federal agencies and partners.
The proposed structure of the redesigned NHIS will differ from the current structure. Since 1997, the NHIS has consisted of a family questionnaire, a sample adult questionnaire, and a sample child questionnaire. The new structure will include a sample adult questionnaire and a sample child questionnaire only; however, in the redesigned NHIS, much of the content from the family section will be collected within the sample adult and sample child interviews. To complete these questionnaires, one adult aged 18 years and over and one child aged 17 years and under (if applicable) will be randomly selected from each sampled household. Information about the sample adult will be collected from the sample adult himself/herself unless s/he is physically or mentally unable to do so, in which case a knowledgeable proxy will be allowed to answer for the sample adult. Information about the sample child will be collected from a knowledgeable adult who may or may not also be the sample adult.
Content from the family questionnaire that will still be obtained from respondents in the redesigned NHIS
Public comment on the first draft of these questionnaires will be critical as we continue to revise and improve the content and question text during the redesign process. The first draft of the questionnaires may be found in the docket under Supporting and Related Materials.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by November 7, 2016.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395-5806,
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of the following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
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Food and Drug Administration, HHS.
Notice of public meeting; request for comments.
The Food and Drug Administration (FDA) is announcing a public meeting entitled “Medical Device User Fee Amendments.” The purpose of the meeting is to discuss proposed recommendations for the reauthorization of the Medical Device User Fee Amendments (MDUFA) for fiscal years (FYs) 2018 through 2022. MDUFA authorizes FDA to collect fees and use them for the process for the review of medical device applications. The current legislative authority for MDUFA expires October 1, 2017. At that time, new legislation will be required for FDA to continue collecting medical device user fees in future fiscal years. Following discussions with the device industry and periodic consultations with public stakeholders, the Federal Food, Drug, and Cosmetic Act (the FD&C Act) directs FDA to publish the recommendations for the reauthorized program in the
The public meeting will be held on November 2, 2016, from 9 a.m. to 5 p.m. Submit electronic or written comments to the public docket by November 14, 2016. When the materials are available, they will be in the docket and posted on this Web site at:
The public meeting will be held at FDA White Oak Campus, 10903 New Hampshire Ave., Building 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993. Entrance for the public meeting participants (non-FDA employees) is through Building 1 where routine security check procedures will be performed. For parking and security information, please refer to
You may submit comments as follows:
Submit electronic comments in the following way:
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• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
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• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Aaron Josephson, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, rm. 5449, Silver Spring, MD 20993, 301-796-5178,
FDA is announcing its intention to hold a public meeting to discuss proposed recommendations for the reauthorization of MDUFA, which authorizes FDA to collect user fees and use them for the process for the review of device applications until September 30, 2017. Without new legislation, FDA will no longer be able to collect user fees for future fiscal years to provide funds for the process for the review of device applications. As required by section 738A(b)(2), (3), and (6) of the FD&C Act (21 U.S.C. 379j-1(b)(2), (3), and (6)), FDA obtained prior public input and negotiated an agreement with regulated industry while periodically consulting with patient and consumer advocacy groups and making minutes of negotiation and stakeholder meetings publicly available. Section 738A(b)(4) of the FD&C Act requires that, after holding negotiations with regulated industry and before transmitting the Agency's final recommendations to Congress for the reauthorized program (MDUFA IV), we do the following: (1) Present the draft recommendations to the Committee on Energy and Commerce of the U.S. House of Representatives and the Committee on Health, Education, Labor, and Pensions of the U.S. Senate; (2) publish the draft recommendations in the
The purpose of the meeting is for the public to present its views on the draft recommendations for the reauthorized program (MDUFA IV). In general, the meeting format will include a brief presentation by FDA, but will focus on hearing from different stakeholder interest groups (such as patient advocates, consumer advocates, industry, health care professionals, and scientific and academic experts). The Agency will also provide an opportunity for individuals to make presentations at the meeting and for organizations and individuals to submit written comments to the docket before and after the meeting. The following information is provided to help potential meeting participants better understand the history and evolution of the medical device user fee program and the current status of the MDUFA IV draft recommendations.
MDUFA is the law that authorizes FDA to collect fees from device companies that register their establishments, submit applications to market devices, and make other types of submissions. In the years preceding enactment of the Medical Device User Fee and Modernization Act of 2002 (MDUFMA) (Pub. L. 107-250), FDA's medical device program suffered a long-term, significant loss of resources that undermined the program's capacity and performance. MDUFMA was enacted “in order to provide FDA with the resources necessary to better review medical devices, to enact needed regulatory reforms so that medical device manufacturers can bring their safe and effective devices to the American people at an earlier point in time, and to ensure that reprocessed medical devices are as safe and effective as original devices.” H.R. Rep. 107-728 at p. 21 (Oct. 7, 2002). MDUFMA was authorized for 5 years and contained two important features that relate to reauthorization:
• User fees for the review of medical device premarket applications, reports, supplements, and premarket notification submissions provided additional resources to make FDA reviews more timely, predictable, and transparent to applicants. User fees and appropriations for the medical device program helped FDA expand available expertise, modernized its information management systems, provided new review options, and provided more guidance to prospective submitters. The ultimate goal was for FDA to clear and approve safe and effective medical devices more rapidly, benefiting applicants, the health care community, and most importantly, patients.
• Negotiated performance goals for many types of premarket reviews provided FDA with benchmarks for measuring review improvements. These quantifiable goals became more demanding each year and included FDA decision goals and cycle goals (cycle goals refer to FDA actions prior to a final action on a submission). Under MDUFMA, FDA also agreed to several other commitments that did not have specific timeframes or direct measures of performance, such as expanding the use of meetings with industry, maintenance of current performance in review areas where specific performance goals had not been identified, and publication of additional guidance documents.
Medical device user fees and increased appropriations were viewed by FDA, Congress, and industry stakeholders as essential to support high-quality, timely medical device reviews, and other activities critical to the device review program.
MDUFMA provided for—and reauthorizations have maintained—fee discounts and waivers for qualifying small businesses. Small businesses make up a large proportion of the medical device industry, and these discounts and waivers helped reduce the financial impact of user fees on this sector of the device industry, which plays an important role in fostering innovation.
Since MDUFMA was first enacted in 2002, it has been reauthorized twice (the 2007 Medical Device User Fee Amendments (MDUFA II) and the 2012 Medical Device User Fee Amendments (MDUFA III)). Under MDUFA III, which has been in effect since 2012 and will expire on October 1, 2017, FDA has met or exceeded nearly all submission performance goals while implementing program enhancements designed to ensure more timely access to safe and effective medical devices. Information about FDA's performance is available in the yearly and quarterly MDUFA performance reports, which are online at:
User fees and related performance goals have played an important role in providing resources and supporting the management systems for ensuring that safe and effective medical devices are available to patients in a timely manner.
In preparing the proposed recommendations to Congress for MDUFA reauthorization, FDA conducted discussions with the device industry and consulted with stakeholders, as required by the FD&C Act. The Agency began the MDUFA reauthorization process by publishing a notice in the
From September 2015 through August 2016, FDA conducted negotiations with representatives of the device industry: The Advanced Medical Technology Association; the Medical Device Manufacturers Association; the Medical Imaging and Technology Alliance; and, the American Clinical Laboratory Association. During its negotiations with the regulated industry, FDA also held monthly consultations with stakeholders representing patient and consumer interests. As directed by Congress, FDA posted minutes of these meetings on its Web site at:
The proposed recommendations for MDUFA IV address many priorities identified by public stakeholders, the device industry, and FDA. While some of the proposed recommendations are new, many either build on successful enhancements or refine elements from the existing program. FDA intends to post the full text of the proposed MDUFA IV commitment letter and proposed statutory changes at:
FDA and representatives of the device industry believe that the process
FDA will improve the pre-submission process and ramp up to a performance goal for written feedback on at least 1,950 pre-submissions within 70 days or 5 calendar days prior to the scheduled meeting, whichever comes sooner, in FY2022 (which is equivalent to meeting the stated timeline for at least 83 percent of an assumed 2,350 pre-submissions). Industry will be responsible for providing draft meeting minutes within 15 days of the meeting. Additional details regarding pre-submissions can be found in section II.A. of the draft commitment letter.
FDA will maintain MDUFA III performance goals for all PMA submissions, including supplements. Additionally, as resources permit, FDA will issue a MDUFA decision within 60 days of an advisory committee recommendation and will issue a decision within 60 days of an applicant's response to an approvable letter. Additional details regarding PMAs can be found in sections II.B.-D. of the draft commitment letter.
FDA will ramp up to a performance goal for reaching a decision on 70 percent of de novo submissions within 150 days in FY2022. Additional details regarding de novo submissions can be found in section II.E. of the draft commitment letter.
FDA will maintain MDUFA III performance goals for all 510(k) submissions. Additionally, FDA will report performance separately for those reviewed by accredited Third Parties. Additional details regarding 510(k)s can be found in section II.F. of the draft commitment letter.
FDA will improve the CLIA waiver by application process by establishing a centralized program management group within the Office of In Vitro Diagnostics and Radiological Health, implementing a Missed MDUFA Decision provision, hosting CLIA Waiver vendor days, and further reducing review times for CLIA Waiver by Application Submissions. Additional resources have not been included in the MDUFA agreement for CLIA Waiver applications. Additional details regarding CLIA Waiver by Application Submissions can be found in section II.G. of the draft commitment letter.
FDA will establish a dedicated premarket Quality Management team, which will be responsible for establishing a quality management framework for the premarket submission process in the Center for Devices and Radiological Health (CDRH) and conducting routine quality audits. Additional details regarding Quality Management can be found in section III.A. of the draft commitment letter.
FDA will implement a more effective recruiting and hiring strategy and will improve employee retention by applying user fee revenues to retain high performing supervisors. Additional details regarding recruitment and retention can be found in section III.B. of the draft commitment letter.
FDA will implement IT improvements that correspond to new performance goals and reporting, enhance IT infrastructure to enable collection and reporting on structured data, develop and maintain a secure Web-based application that allows sponsors to view individual submission status in near real time, and develop structured electronic submission templates as a tool to guide industry's preparation of premarket submissions. Additional details regarding IT can be found in section III.C. of the draft commitment letter.
FDA and industry will establish a conformity assessment program for accredited testing laboratories that evaluate medical devices according to certain FDA-recognized standards. Additional details regarding the enhanced use of consensus standards can be found in section IV.D. of the draft commitment letter.
FDA will strengthen the accredited person (Third Party) Premarket Review Program by offering improved training to Third Party review entities, redacting predicate review memos for use by third parties during their reviews, conducting audits of Third Party review quality, and publishing performance of individual Third Party entities, with the goal of eliminating routine re-review by FDA of Third Party reviews. Additional details regarding the Third Party Premarket Review Program can be found in section IV.E. of the draft commitment letter.
FDA will develop internal expertise on patient preference information and patient reported outcomes (PROs) to enhance the utility of such information in premarket submissions, publish a PRO validation guidance, and hold one or more public meetings. Additional details regarding patient engagement can be found in section IV.F. of the draft commitment letter.
FDA will provide funding for the National Evaluation System for Health Technology to conduct pilots to establish the value of real RWE in the premarket program. Additional details regarding RWE can be found in section IV.H. of the draft commitment letter.
FDA will establish a centralized Digital Health unit to improve consistency in review of software as a medical device and software in a medical device, streamline and align FDA review processes with software life cycles, continue engagement in international harmonization efforts related to software review, and conduct other activities related to Digital Health. Additional details regarding Digital Health can be found in section IV.I. of the draft commitment letter.
FDA and industry will participate in an independent assessment of the CDRH
FDA will continue to report quarterly on performance against commitments. Additionally, FDA will separately report the number and percent of laboratory developed test (LDT) marketing applications completed within the performance goal for 510(k), de novo, and PMA submissions. FDA committed to treating LDTs no less favorably than other devices to which MDUFA performance goals apply. Additional details regarding performance reporting can be found in section VI. of the draft commitment letter.
In conjunction with the proposed enhancements and performance goals outlined in the draft commitment letter, FDA and industry agreed to the following proposed changes to the FD&C Act to ensure that FDA has the statutory authorities needed to implement the negotiated programmatic enhancements:
• FDA and industry are proposing to modify section 738(a)(2)(A) of the FD&C Act (21 U.S.C. 379j(a)(2)(A)) to allow for fees to be collected for de novo submissions and exempting de novo submissions from fees when solely for pediatric conditions for use (section 738(a)(2)(B)(v)(I)).
• FDA and industry are proposing to modify section 738(c) of the FD&C Act to reflect the negotiated fee setting structure. This negotiated structure allows FDA to collect inflation-adjusted base fee amounts without any reduction in fees in the event that submission or registration volumes are higher than planned. Any further adjustments beyond inflation would only be necessary if projected submission or registration volumes are lower than planned such that base fee amounts would need to be increased in order to generate the authorized total fee revenue in a given year.
• The statutory total revenue amounts and base fee amounts are proposed in FY2015 dollars such that annual inflation adjustments will be used to inflate FY2015 dollars to the appropriate amounts for each fiscal year in MDUFA IV.
• FDA is proposing to modify section 738(h)(1)(A) of the FD&C Act to update the appropriations trigger to provide assurance to industry that user fees will be additive to budget authority appropriations.
• FDA and industry are proposing to delete section 738(i)(4) of the FD&C Act to eliminate the fifth-year fee offset because the negotiated fee setting structure allows FDA to collect and use inflation-adjusted base fee amounts each year without any reduction in fees due to increased submission volume. Deleting the fee offset provision (section 738(i)(4)) is necessary to implement the negotiated fee setting structure.
• FDA and industry are proposing to add a subsection (d) to section 514 of the FD&C Act (21 U.S.C. 360d) (Performance standards) to provide authority for FDA to establish a conformity assessment program and per the agreements made during the user fee reauthorization negotiations. FDA and industry are proposing to amend section 523 of the FD&C Act (21 U.S.C. 360m) (Accredited persons) to provide FDA authority to tailor the scope of the Third Party review program per the agreements made during the user fee reauthorization negotiations.
• FDA and industry are proposing to amend section 741 of the FD&C Act (21 U.S.C. 379k-1) (Electronic format for submissions) to provide FDA the authority to develop and implement electronic submissions per the agreements made during the user fee reauthorization negotiations.
FDA will post the agenda approximately 5 days before the meeting at:
If you need special accommodations because of a disability, please contact Joshua St. Pierre, 301-796-9587 or
To register for the meeting, please visit FDA's Medical Devices News & Events—Workshops & Conferences calendar at
FDA is holding this meeting to provide information on the proposed recommendations for the reauthorization of the MDUFA for FYs 2018 through 2022. In order to permit the widest possible opportunity to obtain public comment, FDA is soliciting either electronic or written comments on all aspects of the meeting topics. The docket will open when the draft commitment letter and proposed statutory changes are made public, which is expected to be in mid-October. The materials will be posted on this Web site at:
The docket will close 30 days after those documents are posted.
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, HRSA submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period.
Comments on this ICR should be received no later than November 7, 2016.
Submit your comments, including the ICR title, to the desk officer for HRSA, either by email to
To request a copy of the clearance requests submitted to OMB for review, email the HRSA Information Collection Clearance Officer at
The HCPS is unique because it focuses on comprehensive patient-level data. These and other features of the data will provide researchers and policymakers the capacity to empirically explore policy relevant topics relevant to the Health Center program using up-to-date information.
Prior to releasing this information, BPHC will request prospective users to fill out a “Data Use Agreement” (DUA). BPHC uses DUAs as legal binding agreements when an external entity (
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.
Notice is hereby given of a change in the meeting of the NIH Clinical Center Research Hospital Board scheduled for October 21, 2016, 9:00 a.m. to 5:00 p.m., in Conference Room 6C6, Building 31, National Institutes of Health, Bethesda, MD 20892, which was published in the
A discussion of the reports from the Anonymous Safety Hotline developed by NIH for Clinical Center staff, patients, or visitors to report any concerns about care or unsafe conditions has been added to the closed portion of the meeting. This portion will be closed to the public in accordance with the provisions set forth in section 552b(c)(9)(B) and 552b(c)(6), Title 5 U.S.C., as amended. The premature disclosure of the laboratories or units and staff involved in the individual reports could significantly limit the Hotline's purpose by compromising anonymity. These actions would frustrate NIH's use of this resource as it strives to improve the overall safety and quality of care at the Clinical Center.
There are no changes for the open portion of the meeting that was advertised on September 16, 2016.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The 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.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The Services Accountability Improvement System (SAIS) is a real-time, performance management system that captures information on the substance abuse treatment and mental health services delivered in the United States. A wide range of client and program information is captured through SAIS for approximately 650 grantees. Continued approval of this information collection will allow SAMHSA to continue to meet Government Performance and Results Modernization Act of 2010 (GPRMA) reporting requirements that quantify the effects and accomplishments of its discretionary grant programs which are consistent with OMB guidance.
Based on current funding and planned fiscal year 2016 notice of funding announcements (NOFA), the CSAT programs that will use these measures in fiscal years 2016 through 2018 include: Access to Recovery (ATR) 3 and 4; Adult Treatment Court Collaborative (ATCC); Enhancing Adult Drug Court Services, Coordination and Treatment (EADCS); Offender Reentry Program (ORP); Treatment Drug Court (TDC); Office of Juvenile Justice and Delinquency Prevention-Juvenile Drug Courts (OJJDP-JDC); HIV/AIDS Outreach Program; Targeted Capacity Expansion Program for Substance Abuse Treatment and HIV/AIDS Services (TCE-HIV); Addictions Treatment for the Homeless (AT-HM); Cooperative Agreements to Benefit Homeless Individuals (CABHI); Cooperative Agreements to Benefit
SAMHSA and its Centers will use the data for annual reporting required by GPRA and for NOMs comparing baseline with discharge and follow-up data. GPRA requires that SAMHSA's report for each fiscal year include actual results of performance monitoring for the three preceding fiscal years. The additional information collected through this process will allow SAMHSA to report on the results of these performance outcomes as well as be consistent with the specific performance domains that SAMHSA is implementing as the NOMs, to assess the accountability and performance of its discretionary and formula grant programs.
Note changes have been made to add the recovery measure questions to the instrument from the previous OMB approval. The recovery measure questions are:
• How satisfied are you with the conditions of your living space?
• Have you enough money to meet your needs?
• How would you rate your quality of life?
• How satisfied are you with your health?
• Do you have enough energy for everyday life?
• How satisfied are you with your ability to perform your daily activities?
• How satisfied are you with yourself?
• How satisfied are you with your personal relationships?
Send comments to Summer King, SAMHSA Reports Clearance Officer, 5600 Fishers Lane, Room 15E57-B, Rockville, Maryland 20857,
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The Substance Abuse and Mental Health Services Administration (SAMHSA) is requesting approval to
The goals of the grantee programs are to integrate behavioral health treatment, prevention, and HIV medical care services for racial/ethnic minority populations at high risk for behavioral health disorders and at high risk for or living with HIV. The grantee programs serve many different populations including African American, Hispanic/Latina and other racial/ethnic minorities, young men who have sex with men (YMSM), men who have sex with men (MSM) and bisexual men, adult heterosexual women and men, transgender persons, and people with substance use disorder. Project Director Surveys conducted with grantees are an integral part of evaluation efforts to: (1) Assess the impact of the SAMHSA-funded HIV programs in: Reducing behavioral health disorders and HIV infections; increasing access to substance use disorder (SUD) and mental disorder treatment and care; improving behavioral and mental health outcomes; and reducing HIV-related disparities in four specific grant programs; (2) Describe the different integrated behavioral health and medical program models; and (3) Determine which program types or models are most effective in improving behavioral health and clinical outcomes. SAMHSA will request one web-based survey to be completed by each of the 152 grantee Project Directors. Project Directors may request assistance from another project administrator to help them complete the survey. The web-based survey will be conducted once for grantees in each grant program, in the grantee organization's final year of TCE-HIV (TI-12-007, TI-13-011, TI-15-006) or MAI CoC (TI-14-013) funding, with an annual average of 50 grantees/100 respondents per year. Project Directors will provide information on their program's integration of HIV and Hepatitis medical and primary care into behavioral health services and project implementation. While participating in the evaluation is a condition of the grantees' funding, participating in the survey process is voluntary. The questionnaire is designed to collect information about: Grantee organizational structure, outreach and engagement, services provided through the grant-funded project, coordination of care, behavioral health/medical care integration, funding and project sustainability, staffing and staff development.
The table below is the annualized burden hours:
Send comments to Summer King, SAMHSA Reports Clearance Officer, 5600 Fishers Lane, Room 15E57-B, Rockville, Maryland 20857,
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer at (240) 276-1243.
The Substance Abuse and Mental Health Services Administration (SAMHSA), Center for Mental Health Services (CMHS) is proposing to modify one of its current Transformation Accountability (TRAC) system data collection tools to include previously piloted recovery measures. Specifically, this revision entails the incorporation of twelve recovery measures into the current CMHS NOMs Adult Client-level Measures for Discretionary Programs Providing Direct Services data collection tool. As part of its strategic initiative to support recovery from mental health and substance use disorders, SAMHSA has been working to develop a standard measure of recovery that can be used as part of its grantee performance reporting activities.
This revision will add eight questions from the World Health Organization's (WHO) Quality of Life (QOL) to SAMHSA's existing set of Government
The WHO QOL-8 will assess the following domains using the items listed below:
The revision also includes the following recovery-related performance measures:
Approval of these items by the Office of Management and Budget (OMB) will allow SAMHSA to further refine the Recovery Measure developed for this project. It will also help determine whether the Recovery Measure is added to SAMHSA's set of required performance measurement tools designed to aid in tracking recovery among clients receiving services from the Agency's funded programs.
Table 1 below indicates the annualized respondent burden estimate.
Send comments to Summer King, SAMHSA Reports Clearance Officer, 5600 Fishers Lane, Room 15E57-B, Rockville, Maryland 20857,
Federal Emergency Management Agency, DHS.
Committee Management; Notice of Federal Advisory Committee Meeting.
The Federal Emergency Management Agency (FEMA) Technical Mapping Advisory Council (TMAC) will meet via conference call on October 26 and 27, 2016. The meeting will be open to the public.
The TMAC will meet via conference call on Wednesday, October 26, 2016 from 10:00 a.m. to 5:00 p.m. Eastern Daylight Time (EDT), and on Thursday, October 27, 2016 from 10:00 a.m. to 5:00 p.m. EDT. Please note that the meeting will close early if the TMAC has completed its business.
For information on how to access to the conference call, information on services for individuals with disabilities, or to request special assistance for the meeting, contact the person listed in
To facilitate public participation, members of the public are invited to provide written comments on the issues to be considered by the TMAC, as listed in the
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A public comment period will be held on October 26, 2016 and October 27, 2016. Speakers are requested to limit their comments to no more than two minutes. Each public comment period will not exceed 20 minutes. Please note that the public comment periods may end before the time indicated, following the last call for comments. Contact the individual listed below to register as a speaker by close of business on Friday, October 21, 2016.
Kathleen Boyer, Designated Federal Officer for the TMAC, FEMA, 500 C St. SW., Washington, DC 20024, telephone (202) 646-4023, and email
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. Appendix.
As required by the
Federal Emergency Management Agency, DHS.
Notice of availability.
This document provides notice of the availability of the final policy
This policy is effective September 30, 2016.
The final policy is available online at
Christopher Logan, Acting Director, Public Assistance Division, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, 202-212-2340.
The purpose of the policy is to establish minimum standards for Public Assistance projects in order to promote resiliency and achieve risk reduction under the authority of the Stafford Act §§ 323 and 406(e) (42 U.S.C. 5165a and 5172) and 44 CFR part 206, subpart M. When using Public Assistance funds to repair, replace, or construct buildings located in hazard-prone areas, applicants will use, at a minimum, the hazard-resistant design standards in or referenced in the International Building Code (IBC), the International Existing Building Code (IEBC), and/or the International Residential Code (IRC). Costs associated with meeting these standards are eligible for Public Assistance funding.
FEMA revised the policy content in response to public comments received as follows:
• To clarify that FEMA will evaluate more stringent, locally adopted codes or standards as described in 44 CFR part 206.226(d),
• To clarify that the most recent edition of the IBC, IEBC, or IRC as of the disaster declaration date will be used as the new Federal minimum design standard,
• To clarify that the policy only applies to the standards of the IBC, IEBC, and IRC related to hazard-resistant designs, and
• To provide information regarding how the policy will interact with floodplain management minimization standards as described in 44 CFR part 9.11(d) as well as with the calculation for repair versus replacement described in 44 CFR part 206.226(f).
The final policy does not have the force or effect of law.
42 U.S.C. 5165a, 5172; 44 CFR 206.226, 206.400.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Development (HUD).
Notice of Housing Counseling Federal Advisory Committee (HCFAC) Members, and Public Meeting.
This notice announces the appointment of HCFAC members, gives notice of a one-day meeting and sets forth the proposed agenda of the Housing Counseling Federal Advisory Committee (HCFAC) first Committee meeting. The Committee meeting will be held on Tuesday, November 1, 2016. The meeting is open to the public and is accessible to individuals with disabilities.
The in-person meeting will be held on Tuesday, November 1, 2016 from 8:30 a.m. to 5:30 p.m. Eastern Daylight Time (EDT) at HUD Headquarters, 451 7th Street SW., Washington, DC 20410.
Marjorie George, Housing Program Technical Specialist, Office of Housing Counseling, U.S. Department of Housing and Urban Development, 200 Jefferson Avenue, Suite 300, Memphis, TN 38103; telephone number (901) 544-4228 (this is not a toll-free number). Persons who have difficulty hearing or speaking may access this number via TTY by calling the toll-free Federal Relay Service at (800) 877-8339. Individuals may also email
The U.S. Department of Housing and Urban Development (HUD) announces the appointment of 12 individuals to the Housing Counseling Federal Advisory Committee (HCFAC). The HCFAC was established on April 14, 2015 pursuant to Subtitle D of title XIV of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, 124 Stat. 1376 (July 21, 2010)) (Dodd-Frank Act), which mandates that the Secretary appoint an advisory committee to provide advice to the Office of Housing Counseling (OHC). The Dodd-Frank Act also mandated that the HCFAC should equally represent the mortgage and real estate industry, consumers and HUD -approved housing counseling agencies. A
Selection of the HCFAC members was made by the Secretary based on the candidate's qualifications, expertise and diversity of viewpoints that are necessary to effectively address the matters before the HCFAC. Membership on the Committee is personal to the appointee and committee members serve at the discretion of the Secretary for a 3-year term, except the first appointed members consist of at a minimum 4 appointees that serve for a 2-year term and 4 appointees that serve for a 1-year term.
The initial HCFAC appointees effective June 1, 2016 are:
HUD is convening the first meeting of the HCFAC on Tuesday, November 1, 2016 from 8:30 a.m. to 5:30 p.m. The meeting will be held at HUD Headquarters, 451 7th Street SW., Washington, DC 20410 and via conference phone. This meeting notice is provided in accordance with the Federal Advisory Committee Act, 5. U.S.C. App. 10(a)(2).
With advance registration, the public is invited to attend this one-day meeting in-person or by phone. To register to attend, please visit the Web page at:
In-person attendees will receive details about the meeting location and how to access the building after completing the pre-registration process at the above link. The meeting is also open to the public with limited phone lines available on a first-come, first-served basis. Phone attendees can call-in to the one-day meeting by using the following toll-free number in the United States: (800) 230-1059. An operator will ask callers to provide their names and their organizational affiliations (if applicable) prior to placing callers into the conference line to ensure they are part of the pre-registration list. Callers can expect to incur charges for calls they initiate over wireless lines and HUD will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free phone number. Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service (FRS): (800) 977-8339 and providing the FRS operator with the conference call toll-free number: (800) 230-1059.
Also, with advance registration, members of the public will have an opportunity to provide oral and written comments. The total amount of time for oral comments will be limited to three minutes per commenter to ensure pertinent Committee business is completed. Written comments must be provided no later than October 24, 2016 to
Records and documents discussed during the meeting, as well as other information about the work of this Committee, will be available for public viewing as they become available at:
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 402-3970; TTY number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), call the toll-free Title V information line at 800-927-7588 or send an email to
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, and suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to: Ms. Theresa M. Ritta, Chief Real Property Branch, the Department of Health and Human Services, Room 12-07, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857, (301)-443-2265 (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1-
For more information regarding particular properties identified in this Notice (
Fish and Wildlife Service, Interior.
Notice of meeting.
We, the U.S. Fish and Wildlife Service, announce a public meeting of the Aquatic Nuisance Species (ANS) Task Force. The ANS Task Force's purpose is to develop and implement a program for U.S. waters to prevent introduction and dispersal of aquatic invasive species (AIS); to monitor, control, and study such species; and to disseminate related information.
The ANS Task Force will meet from 8 a.m. to 5 p.m. on Wednesday, November 9, 2016, and 8 a.m. to 5 p.m. on Thursday, November 10, 2016. For more information, contact the ANS Task Force Executive Secretary (see
The ANS Task Force meeting will take place at the U.S. Fish and Wildlife Headquarters, 5275 Leesburg Pike, Falls Church, VA 22041
Susan Pasko, Executive Secretary, ANS Task Force, by telephone at 703-358-2466, or by email at
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., we announce that the ANS Task Force will hold a meeting.
The ANS Task Force was established by the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (Act) (Pub. L. 106-580, as amended), and is composed of 13 Federal and 15 ex-officio members, and co-chaired by the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration. The ANS Task Force provides advice on AIS infesting waters of the United States and other nations, among other duties as specified in the Act.
• New Species Occurrences
• Update on Policy and Planning from the National Invasive Species Council
• Session on Developing Effective Outreach Programs
• Updates from the Stop Aquatic Hitchhikers! and Habitattitude Campaigns
• Update on Ballast Water Legislation and Management Technologies
• Session on Organisms in Trade
• Update from the Arctic Council
• Discussion on ANS Task Force Member Reporting and Strategic Planning
• Updates from ANS Task Force Members, Regional Panels, and Committees
The final agenda and other related meeting information will be posted on the ANS Task Force Web site at
Summary minutes of the meeting will be maintained by the Executive Secretary (see
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following application to conduct activities intended to enhance the survival of endangered or threatened species.
To ensure consideration, please send your written comments by November 7, 2016.
You may submit comments or requests for copies or more information by any of the following methods. Alternatively, you may use one of the following methods to request hard copies or a CD-ROM of the documents.
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Drew Crane, Endangered Species Coordinator, Ecological Services, (907) 781-3323 (phone);
The Act (16 U.S.C. 1531
A permit granted by us under section 10(a)(1)(A) of the Act authorizes the permittees to conduct activities with U.S. endangered or threatened species for scientific purposes, enhancement of propagation or survival, or interstate commerce (the latter only in the event that it facilitates scientific purposes or enhancement of propagation or survival). Our regulations implementing section 10(a)(1)(A) for these permits are found at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
We invite local, State, and Federal agencies and the public to comment on the following application. Documents and other information the applicants have submitted with their applications are available for review, subject to the requirements of the Privacy Act (5 U.S.C. 552a) and Freedom of Information Act (5 U.S.C. 552).
The applicant requests renewal of an existing permit to purposefully take (display, photograph, harass by survey, capture, handle, weigh, measure, mark, obtain biological samples, breed in captivity, reintroduce, relocate, remove from the wild, kill, and, for plant species only, remove and reduce to possession) all threatened and endangered species listed in the State of Alaska for recovery or scientific purposes or for the enhancement of propagation or for enhancing the species' survival. This permit will allow Fish and Wildlife Service employees and volunteers to lawfully conduct threatened and endangered species activities, in conjunction with recovery activities throughout the species' range, as outlined in Fish and Wildlife Service employees' and volunteers' position descriptions.
The proposed activities in the requested permits qualify as categorical exclusions under the National Environmental Policy Act, as provided by Department of the Interior implementing regulations in part 46 of title 43 of the Code of Federal Regulations (43 CFR 46.205, 46.210, and 46.215).
All comments and materials we receive in response to these requests will be available for public inspection, by appointment, during normal business hours at the address listed in
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We provide this notice under section 10 of the Act (16 U.S.C. 1531
Office of the Secretary, Interior.
Notice.
The Secretary of the Interior (Secretary) is publishing this notice in accordance with section 509(f) of the Taos Pueblo Indian Water Rights Settlement Act, Public Law 111-291 (Settlement Act). Congress enacted the Settlement Act as Title V of the Claims Resolution Act of 2010. The publication of this notice causes the Settlement Agreement entered in accordance with Section 509 of the Settlement Act to become enforceable and causes certain waivers and releases of claims executed pursuant to sections 510 and 511(a) of the Settlement Act to become effective.
This notice is effective October 7, 2016.
Address all comments and requests for additional information to Mr. John E. Peterson II, Chair, Taos Pueblo Water Rights Settlement Implementation Team, Department of the Interior, Bureau of Reclamation, Native American and International Affairs Office, Denver Federal Center, P.O. Box 25007 (86-43200), Denver, Colorado 80225-0007, (303) 445-2122.
The Settlement Act was enacted to resolve the water rights claims of Taos Pueblo (Pueblo) on the Rio Pueblo de Taos and Rio Hondo stream systems and interrelated groundwater and tributaries in the State of New Mexico subject to an adjudication in the U.S. District Court (Court) in
(1) To approve, ratify, and confirm the Settlement Agreement;
(2) to authorize and direct the Secretary to execute the Settlement Agreement and to perform all obligations of the Secretary under the Settlement Agreement and the Settlement Act; and
(3) to authorize all actions and appropriations necessary for the United States to meet its obligations under the Settlement Agreement and the Settlement Act.
In accordance with section 509(f) of the Settlement Act, I find as follows:
(1) The President has signed into law the Settlement Act;
(2) to the extent that the Settlement Agreement conflicted with the Settlement Act, the Settlement Agreement has been revised to conform with the Settlement Act;
(3) the Settlement Agreement, so revised, including waivers and releases pursuant to section 510 of the Settlement Act, has been executed by the Settlement Parties and the Secretary prior to the Settlement Parties' motion for entry of the Partial Final Decree;
(4) Congress has fully appropriated all funds made available under paragraphs (1) and (2) of section 509(c) of the Settlement Act;
(5) the State Legislature has fully appropriated the funds for the State contributions as specified in the Settlement Agreement, and those funds have been deposited in appropriate accounts;
(6) the State has enacted legislation that amends New Mexico Statutes Annotated (NMSA) 1978, section 72-6-3 to state that a water use due under a water right secured to the Pueblo under the Settlement Agreement or the Partial Final Decree may be leased for a term, including all renewals, not to exceed 99 years; and
(7) a Partial Final Decree that sets forth the water rights and contract rights to water to which the Pueblo is entitled under the Settlement Agreement and the Settlement Act and that substantially conforms to the Settlement Agreement and Attachment 5 of the Settlement Agreement has been approved by the Court and has become final and non-appealable.
Bureau of Land Management, Interior.
Notice of Filing of Plats of Survey; Colorado.
The Bureau of Land Management (BLM) Colorado State Office is publishing this notice to inform the public of the intent to officially file the survey plats listed below and afford a proper period of time to protest this action prior to the plat filing. During this time, the plats will be available for review in the BLM Colorado State Office.
Unless there are protests of this action, the filing of the plats described in this notice will happen on November 7, 2016.
BLM Colorado State Office, Cadastral Survey, 2850 Youngfield Street, Lakewood, CO 80215-7093.
Randy Bloom, Chief Cadastral Surveyor for Colorado, (303) 239-3856.
Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, seven days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The plat and field notes of the dependent resurvey and survey in Township 16 South, Range 72 West, Sixth Principal Meridian, Colorado, were accepted on August 26, 2016.
The plat and field notes of the dependent resurvey and survey in Township 49 North, Range 9 West, New Mexico Principal Meridian, Colorado, were accepted on September 8, 2016.
The plat, in 2 sheets, and field notes of the dependent resurvey and survey in Township 49 North, Range 8 West, New Mexico Principal Meridian, Colorado, were accepted on September 20, 2016.
The supplemental plat of section 7 in Township 7 South, Range 73 West, Sixth Principal Meridian, Colorado, was accepted on September 27, 2016.
The plat and field notes of the dependent resurvey and survey in Township 36 North, Range 7 West, New Mexico Principal Meridian, Colorado, were accepted on September 28, 2016.
The plat and field notes of the dependent resurvey and survey in Township 37 North, Range 7 West, New Mexico Principal Meridian, Colorado, were accepted on September 28, 2016.
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) has prepared a Final Supplemental Environmental Impact Statement (EIS) and Proposed Resource Management Plan (RMP)/Management Framework Plan (MFP) Amendments for the right-of-way (ROW) application for Segments 8 and 9 of the Gateway West 500-kilovolt (kV) Transmission Line Project in Idaho. By this notice the BLM is announcing its availability and the opening of a protest period concerning the proposed RMP/MFP amendments.
A person who meets the conditions for protesting an RMP/MFP amendment outlined in 43 CFR 1610.5-2 and wishes to file a protest must do so within 30 days of the date that the Environmental Protection Agency publishes its Notice of Availability in the
Interested persons may review the Final Supplemental EIS and Proposed RMP/MFP Amendments online at
All protests must be in writing and mailed to one of the following addresses:
Heather Feeney, Public Affairs Specialist, telephone 208-373-4060; email
PacifiCorp, dba Rocky Mountain Power, and Idaho Power (Applicants) have submitted a ROW application to construct, operate, and maintain two 500-kV electric transmission lines on Federal lands as part of the Gateway West project. The initial application proposed to construct electric transmission lines from the Windstar Substation near Glenrock, Wyoming, to the Hemingway Substation near Melba, Idaho, approximately 20 miles southwest of Boise, Idaho. The original project comprised 10 transmission line segments with a total length of approximately 1,000 miles and was analyzed in a Final EIS published in April 2013. The BLM issued a Record of Decision (ROD) in November 2013 that authorized routes on Federal lands for Segments 1 through 7 and Segment 10 but deferred a decision for Segments 8 and 9.
In August 2014, the BLM received from the Applicants a revised ROW application for Segments 8 and 9 and a revised Plan of Development (POD) for the project. The BLM determined that new information in the revised ROW application and POD, including revised proposed routes for Segments 8 and 9 of the transmission lines and several modified design features, required additional analysis of potential environmental effects to supplement the analysis presented in the 2013 Final EIS.
A Notice of Intent to prepare a Supplemental EIS was published in the
Both the Draft and Final Supplemental EISs incorporate information contained in two reports developed in 2014 by the BLM Boise District Resource Advisory Council (RAC) subcommittee on Gateway West. One report identified and evaluated route options in the Boise District portions of Segments 8 and 9, and the second report examined potential mitigation and resource enhancement for impacts in the Morley Nelson Snake River Birds of Prey National Conservation Area (SRBOP).
The BLM must determine whether to grant, grant with modifications, or deny the ROW application to use public lands for Segments 8 and 9 of the Gateway West project. In accordance with 43 CFR 1610.0-5(b), the BLM must consider existing RMPs and MFPs in the decision on whether or not to issue a ROW grant. Portions of the proposed transmission line are not in conformance with several BLM land management plans, and therefore, amendments to these plans are analyzed as part of the Supplemental EIS. The BLM will decide whether to approve land use plan amendments for non-conforming elements. In addition, the BLM must ensure that the authorized project would be compatible with the purposes for which Congress designated the SRBOP in Public Law 103-64 and with current policy for managing units of the BLM's National Conservation Lands.
The BLM is the lead Federal agency for the NEPA analysis and preparation of the Supplemental EIS. The State of Idaho, Twin Falls County, and Federal agencies with specialized expertise and/or jurisdictional responsibilities in the area of Segments 8 and 9 are participating as cooperating agencies. These include the U.S. Fish and Wildlife Service (USFWS); National Park Service; U.S. Army Corps of Engineers; Idaho State Historic Preservation Office; Idaho Department of Fish and Game; the Idaho Governor's Office of Energy Resources; the City of Kuna, Idaho; and Twin Falls County, Idaho.
Comments on the Draft Supplemental EIS/Draft RMP Amendments received from the public and during internal BLM review were considered and incorporated as appropriate into the Final Supplemental EIS/Proposed RMP/MFP amendments. Comments on the Draft Supplemental EIS/Draft RMP/MFP Amendments resulted in the addition of clarifying text but did not significantly change proposed land use plan decisions.
The BLM is also engaging in government-to-government consultations on the Supplemental EIS with the Shoshone-Bannock Tribes of Fort Hall and the Shoshone-Paiute Tribes of Duck Valley, under Federal laws and policies including but not limited to the National Historic Preservation Act, NEPA, Archaeological Resources Protection Act, American Indian Religious Freedom Act, Native American Graves Protection and Repatriation Act, and Executive Orders 12875, 12898, 13007, 13084, and 13175.
Relevant issues and concerns that influenced the scope of the environmental analysis in the Draft Supplemental EIS but which were not addressed in the original EIS were identified during scoping. Alternatives presented in the Final Supplemental EIS are analyzed based on all the issues included in the 2013 Final EIS (refer to Section 1.10 of the Final EIS), as well as in response to new issues, direction in agency handbooks, and requirements of Federal and State laws and regulations. The following issue categories were identified from public and internal scoping conducted for the Supplemental EIS:
The Final Supplemental EIS analyzes in detail seven pairings of route alternatives for Segments 8 and 9 as Action Alternatives. Analysis of the No Action Alternative, under which the ROW application would be denied and Segments 8 and 9 would not be constructed on public lands, is included in the 2013 Final EIS for the original Gateway West project and is incorporated by reference in the Final Supplemental EIS.
Alternative 1 is the pair of revised proposed routes for Segments 8 and 9, as presented by the Applicants. Alternative 2 pairs the revised proposed route for Segment 8 and the Final EIS proposed route for Segment 9. Alternative 3 is the revised proposed route for Segment 8 and a route designated 9K, which was developed as a result of scoping for the Draft Supplemental EIS. Alternative 4 pairs the Final EIS proposed route for Segment 9 and a route designated as 8G, which was developed as a result of scoping for the Draft Supplemental EIS. Alternative 5 pairs routes 8G and 9K. Alternative 6 consists of the Final EIS proposed route for Segment 9 and a Draft Supplemental EIS route 8H. Alternative 7 is routes 8H and 9K. The ROW width requested for all segments is 250 feet, except for Alternative 5, where a 500-foot ROW is required to accommodate two lines at the minimum separation distance. Portions of all route alternatives would cross the SRBOP.
Both segments terminate at the Hemingway substation under all action alternatives. Segments are separated at distances of 250 feet to more than 30 miles, varying within routes and/or across alternatives. Analysis of several other routes for Segments 8 and 9 in the 2013 Final EIS are incorporated by reference into the Draft and Final Supplemental EISs. The Final Supplement EIS identifies Alternative 5 as the preferred Alternative.
The Final Supplemental EIS incorporates by reference the analysis related to Segments 8 and 9 in the Gateway West 2013 Final EIS, including relevant Proposed Environmental Protection Measures identified in Table 2.7-1 of that document. The Final Supplemental EIS supplements the analysis in that Final EIS by assessing new information that has become available since the Final EIS and ROD were published, including the identification of new routes and route variations for Segments 8 and 9. All of those new routes and route variations would have some impact on the SRBOP, a National Conservation Area, whose enabling statute directs that the area be managed “to provide for the conservation, protection and enhancement of raptor populations and habitats and the natural and environmental resources and values associated therewith, and of the scientific, cultural, and educational resources and values of the public lands in the conservation area.” Public Law 103-64, at section 3(2).
The Final Supplemental EIS includes new information and analyses regarding mitigation and enhancement of resource impacts, especially within the SRBOP. This mitigation is consistent with the Presidential Memorandum on Mitigation (November 3, 2015) which requires that agencies “[e]stablish a net benefit goal or, at a minimum, a no net loss goal for natural resources the agency manages that are important, scarce, or sensitive . . .”. The Memorandum further provides that: “[w]hen a resource's value is determined to be irreplaceable, the preferred means of achieving either of these goals is through avoidance, consistent with applicable legal authorities.” Memorandum at section 3(a). Department of the Interior policy calls for applying a mitigation hierarchy—a sequence of approaches—to develop appropriate actions to address project impacts: Avoid, mitigate, compensate. Department Manual at 600 DM 6.
As part of their revised POD, the Applicants proposed a mitigation and enhancement portfolio (MEP) with design features specific to the SRBOP, aimed at mitigating the effects of project-related impacts within the SRBOP, as well as complying with the resource enhancement goal in the SRBOP's enabling statute. The Draft Supplemental EIS found that the MEP did not provide sufficient details or specifics for development of mitigation actions to allow the BLM to determine how the MEP goals for SRBOP would be achieved.
Appendix K in the Final Supplemental EIS presents a Framework the BLM has developed for assessing compensatory mitigation for SRBOP consistent with FLPMA, the Department policy, and the Presidential Memorandum as they relate to impacts on National Historic Trails, cultural resources, wildlife habitat, and recreation and visitor services in the SRBOP. The Framework supersedes the MEP and is scalable. It discusses compensatory mitigation measures that would be required under each alternative to address impacts to the resources warranting mitigation, including each SRBOP resource category. The Framework describes three categories of mitigation actions that would address residual impacts to SRBOP resources: Preservation and Protection, Restoration, and Establishment (including Science and Education). If the BLM grants a ROW within the SRBOP, the BLM will require the Applicant to meet the mitigation requirements before the BLM issues a Notice to Proceed.
Impacts to Greater sage-grouse (GRSG) and migratory birds, wetlands, and cultural resources and National Historic Trails outside the SRBOP are addressed in the 2013 Final EIS for the entire 10-segment project, and the 2013 ROD contains compensatory mitigation frameworks for each of these resources. The Final Supplemental EIS finds that the 2013 GRSG Habitat Mitigation Plan does not address all potential indirect effects, and as a result, the BLM will require the applicants to develop a proposal and final plan that fully compensates for all potential indirect and direct impacts to GRSG, using methods outlined in the August 2016 white paper authored by the BLM and USFWS.
The Final Supplemental EIS sets the standard for compensatory mitigation to address impacts to GRSG as a net conservation gain for the species. The standard for compensatory mitigation that addresses impacts in the SRBOP is enhancement of resources, consistent with the enabling statute for the SRBOP (Pub. L. 103-64). In the ROD, the Authorized Officer, taking into consideration the totality of the analysis and available information, will determine whether the requirements in the Framework will meet the statute's enhancement standard. For impacts to important, scarce or sensitive resources on BLM-managed lands outside the SRBOP and which are not identified as GRSG habitat, compensatory mitigation will be required to achieve a minimum of no net loss or where required or appropriate, a net benefit to impacted resources. Compensatory mitigation for all important scarce or sensitive resources will be designed to ensure durability, effectiveness, timeliness, commensurability, additionality and
In accordance with the Department's NEPA regulations (43 CFR 46.425), the BLM identifies Alternative 5 as the Preferred Alternative. This alignment minimizes crossing of the SRBOP to a total of 17.6 miles, 8.8 miles per segment in parallel, separated by 250 feet. The alternative avoids all GRSG Priority Habitat Management Areas, the Hagerman Fossil Beds National Monument, the historic Toana Freight Road, and Balanced Rock natural landmark in Twin Falls County. The distance separating the segments (250 feet) meets WECC planning criteria, while minimizing the project footprint by reducing the need to construct new access roads to build and service the lines. The alignments in this alternative also avoid primary agricultural lands in Owyhee County and in general, impacts the least amount of private lands of any alternative analyzed in detail in the Supplemental EIS. Residential areas of Kuna and Melba are also avoided.
Alternative 5 would require five plan amendments to three current BLM land use plans so that the project would conform to the respective plans. The following land use plans would be amended in a decision selecting Alternative 5:
In order to authorize the Segment 8 alignment in this alternative, two land use plans would need to be amended. The SRBOP RMP would require an amendment to allow an additional ROW and designate an additional corridor for two 500-kV lines, as well as an amendment to allow the project within 0.5 mile of sensitive plant habitat. The Bruneau MFP would need to be amended to change the classification for a VRM Class II parcel near Castle Creek to VRM Class III. These same amendments to the SRBOP RMP and Bruneau MFP would be needed for Segment 9 in this alternative, as the routes would parallel each other in these planning areas. Authorizing the Segment 9 alignment in this alternative would also require two additional amendments. The Twin Falls MFP would need amendments to allow the ROW outside of existing corridors, and to reclassify VRM Class I and II areas adjacent to the Roseworth corridor to VRM class III, while allowing a 500-kV line to cross the Salmon Falls Creek Area of Critical Environmental Concern.
For Gateway West, the environmentally preferable alternative is the No Action Alternative. Under the No Action Alternative, Gateway West Segments 8 and 9 would not be constructed, no RMPs or MFPs would need to be amended, and the objectives of the project as described in Section 1.4 of the Supplemental EIS would not be met.
Pursuant to 43 CFR 1610.5-2, a person may protest the Proposed RMP/MFP amendments. Instructions for filing a protest with the Director of the BLM regarding the Proposed RMP/MFP Amendments may be found online at
Copies of the Final Supplemental EIS and Proposed RMP/MFP Amendments have been sent to cooperating agencies; other affected Federal, State, and local government agencies; the Shoshone-Paiute Tribes of Duck Valley; the Shoshone-Bannock Tribes of Fort Hall; and other stakeholders.
Copies of the Final Supplemental EIS and Proposed RMP/MFP Amendments and other documents pertinent to this project may also be examined at:
Before including your phone number, email address, or other personal identifying information in your protest, you should be aware that your entire protest—including your personal identifying information—may be made publicly available at any time. While you can ask us in your protest to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1506.6, 40 CFR 1506.10, 43 CFR 1610.2; 43 CFR 1610.5.
National Park Service, Interior.
Notice.
The National Park Service is soliciting comments on the significance of properties nominated before September 10, 2016, for listing or related actions in the National Register of Historic Places.
Comments should be submitted by October 24, 2016.
Comments may be sent via U.S. Postal Service to the National
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before September 10, 2016. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
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.
60.13 of 36 CFR part 60.
National Park Service, Interior.
Notice.
The National Park Service is soliciting comments on the significance of properties nominated before September 17, 2016, for listing or related actions in the National Register of Historic Places.
Comments should be submitted by October 24, 2016.
Comments may be sent via U.S. Postal Service to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th Floor, Washington, DC 20005; or by fax, 202-371-6447.
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before September 17, 2016. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
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.
60.13 of 36 CFR part 60.
Bureau of Reclamation and National Park Service, Interior.
Notice of availability.
The Department of the Interior, through the Bureau of Reclamation and National Park Service, has prepared a Final Environmental Impact Statement (FEIS) for the Long-Term Experimental and Management Plan (LTEMP) for the operation of Glen Canyon Dam and related non-flow actions. The LTEMP would provide a framework for adaptively managing Glen Canyon Dam operations over the next 20 years consistent with the Grand Canyon Protection Act of 1992 and other provisions of applicable Federal law.
The Department of the Interior will not issue a final decision on the proposed action for a minimum of 30 days after the date that the Environmental Protection Agency publishes its Notice of Availability of Weekly Receipt of Environmental Impact Statements in the
Electronic copies of the FEIS are available at the Glen Canyon Dam LTEMP EIS Web site located at
Ms. Katrina Grantz, Chief, Adaptive Management Group, Bureau of Reclamation,
Persons who use a telecommunications device for the deaf may call the Federal Relay Service at 1-800-877-8339 to contact the above individuals during normal business hours. The Service is available 24 hours a day, 7 days a week, in order to leave a message or question with the above named individuals. You will receive a reply during normal business hours.
Pursuant to the National Environmental Policy Act of 1969, as amended, the Bureau of Reclamation (Reclamation) and the National Park Service (NPS) jointly prepared the FEIS for the LTEMP in cooperation with 15 cooperating agencies including three Federal agencies, six non-Federal agencies, and six American Indian tribes. A primary function of the LTEMP will be the implementation of monthly, daily, and hourly releases from Glen Canyon Dam and related non-flow actions as part of an experimental adaptive management program in accordance with the Grand Canyon Protection Act of 1992 (GCPA) and in coordination with the Glen Canyon Dam Adaptive Management Program. This will be the first EIS completed on the monthly, daily, and hourly operations of Glen Canyon Dam since 1995, which was a major point of demarcation in attempting to achieve a balance between project purposes and natural resources protection.
The Draft Environmental Impact Statement (DEIS) for the LTEMP was filed with the Environmental Protection Agency and issued to the public on January 8, 2016, and a Notice of Availability of the DEIS was published in the
The proposed Federal action is the development and implementation of a structured, long-term experimental and management plan for operations of Glen Canyon Dam. The LTEMP and the Secretary of the Interior's (Secretary) decision would provide a framework for adaptively managing Glen Canyon Dam operations and other management and experimental actions over the next 20 years consistent with the GCPA and other provisions of applicable Federal law.
The LTEMP would determine specific options for dam operations (including hourly, daily, and monthly release patterns), non-flow actions, and appropriate experimental and management actions that will meet the GCPA's requirements, maintain or improve hydropower production to the greatest extent practicable, consistent with improvement of downstream resources, including those of importance to American Indian tribes.
The proposed Federal action will help determine specific dam operations and actions that could be implemented to improve conditions and continue to meet the GCPA's requirements and to minimize—consistent with law—adverse impacts on the downstream natural, recreational, and cultural resources in Glen Canyon National Recreation Area and Grand Canyon National Park, including resources of importance to American Indian tribes.
The need for the proposed Federal action stems from the need to use scientific information developed since the 1996 ROD to better inform the public of Department of the Interior decisions on dam operations and other management and experimental actions so that the Secretary may continue to meet statutory responsibilities for protecting downstream resources for future generations, conserving species listed under the Endangered Species Act, avoiding or mitigating impacts on
The FEIS assesses the potential environmental effects of seven alternatives being considered: The No-Action Alternative (Alternative A) and six Action Alternatives (Alternatives B, C, D, E, F, and G), which are described below. There are a number of experimental and management actions that would be incorporated into all of
• High-flow experimental releases for sediment conservation—Implementation of high-flow experiments (HFEs) under all alternatives are patterned after the current HFE Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) (adopted in 2012), but some alternatives include specific modifications related to the frequency of spring and fall HFEs, the duration of fall HFEs, the triggers for HFEs, and the overall process for implementation of HFEs, including implementation considerations and conditions that would result in discontinuing specific experiments.
• Non-native fish control actions—Implementation of control actions for non-native brown trout (
• Conservation measures established by the U.S. Fish and Wildlife Service in previous biological opinions—Conservation measures identified in the 2011 Biological Opinion on operations of Glen Canyon Dam included the establishment of a humpback chub refuge, evaluation of the suitability of habitat in the lower Grand Canyon for the razorback sucker (
• Non-flow experimental and management actions at specific sites such as non-native plant removal, revegetation with native species, and mitigation at specific and appropriate cultural sites. These actions would also have involvement from tribes to capture concerns regarding culturally significant native plants, and would provide an opportunity to integrate Traditional Ecological Knowledge in a more applied manner into the long-term adaptive management program.
• Preservation of historic properties through a program of research, monitoring, and mitigation to address erosion and preservation of archeological and ethnographic sites and minimize loss of integrity at National Register historic properties.
• Continued adaptive management under the Glen Canyon Dam Adaptive Management Program, including a research and monitoring component.
Alternative A represents continued operation of Glen Canyon Dam as guided by the 1996 ROD for operations of Glen Canyon Dam: Modified low fluctuating flow, as modified by recent Department of the Interior decisions, including those specified in the 2007 ROD on Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for lakes Powell and Mead (Interim Guidelines) (until 2026), the HFE EA, and the Non-native Fish Control EA (both expiring in 2020). As is the case for all alternatives, Alternative A also includes implementation of existing and planned NPS management activities, with durations as specified in NPS management documents.
Under Alternative A, daily flow fluctuations would continue to be determined according to monthly volume brackets as follows: 5,000 cubic feet per second (cfs) daily range for monthly volumes less than 600 thousand acre-feet (kaf); 6,000 cfs daily range for monthly volumes between 600 kaf and 800 kaf; and 8,000 cfs for monthly volumes greater than 800 kaf.
Under Alternative A, the current HFE protocol would be followed until it expired in 2020. Under this protocol, high-flow releases may be made in spring (March and April) or fall (October and November). HFE magnitude would range from 31,500 cfs to 45,000 cfs. The duration would range from less than 1 hour to 96 hours. Frequency of HFEs would be determined by tributary sediment inputs, resource conditions, and a decision process carried out by the Department of the Interior. The HFE protocol uses a “store and release” approach in which sediment inputs are tracked over two accounting periods, one for each seasonal HFE: Spring (December through June) and fall (July through November). Under the protocol, the maximum possible magnitude and duration of HFE that would achieve a positive sand mass balance in Marble Canyon, as determined by modeling, would be implemented.
Under Alternative A, the current non-native fish control protocol would be followed until it expired in 2020. Mechanical removal would primarily consist of the use of boat-mounted electrofishing equipment to remove all non-native fish captured. Captured non-native fish would be removed alive and potentially stocked into areas that have an approved stocking plan, unless live removal fails, in which case fish would be euthanized and used for later beneficial use.
The objective of Alternative B is to increase hydropower generation while limiting impacts on other resources and relying on flow and non-flow actions to the extent possible to mitigate impacts of higher fluctuations. Alternative B focuses on non-flow actions and experiments to address sediment resources, non-native fish control, and on native and non-native fish communities.
Under Alternative B, monthly volumes would be the same as under current operations, but daily flow fluctuations would be higher than under current operations in most months. Compared to current operations, the hourly up-ramp rate would remain unchanged at 4,000 cfs/hour, but the hourly down-ramp rate would be increased to 4,000 cfs/hour in November through March and 3,000 cfs/hour in other months.
Alternative B includes implementation of the non-native fish control protocol and HFE protocol through the entire LTEMP period, but HFEs would be limited to a maximum of one in spring or fall every other year.
The objective of Alternative C is to adaptively operate Glen Canyon Dam to achieve a balance of resource objectives with priorities placed on humpback chub, sediment, and minimizing impacts on hydropower. Alternative C features a number of condition-dependent flow and non-flow actions that would be triggered by resource conditions. The alternative uses decision trees to identify when experimental changes in base operations or other planned action is needed to protect resources. Operational changes or implementation of non-flow actions could be triggered by changes in sediment input, humpback chub numbers and population structure, trout numbers, and water temperature.
Monthly release volumes under Alternative C in August through November would be lower than those under most other alternatives to reduce sediment transport rates during the monsoon period. Release volumes in the high power demand months of December, January, and July would be increased to compensate for water not released in August through November, and volumes in February through June would be patterned to follow the monthly hydropower demand as defined by the contract rate of delivery. Under Alternative C, the allowable within-day fluctuation range from Glen Canyon Dam would be proportional to monthly volume (7 × monthly volume in kaf). The down-ramp rate would be increased to 2,500 cfs/hour, but the up-ramp rate would remain unchanged at 4,000 cfs/hour.
Experimentation under Alternative C includes testing the effects of the following actions: (1) Sediment-triggered spring and fall HFEs through the entire 20-year LTEMP period, (2) 24-hour proactive spring HFEs in high volume years (≥10 maf release volume), (3) extension of the possible duration of fall HFEs while maintaining a maximum total volume of a 96-hour 45,000 cfs release, (4) reducing fluctuations before and after HFEs, (5) mechanical removal of trout near the Little Colorado River confluence, (6) trout management flows, and (7) low summer flows during the entire LTEMP period to allow greater warming.
Alternative D is the preferred alternative for the LTEMP. The objective of Alternative D is to adaptively operate Glen Canyon Dam to best meet the resource goals of the LTEMP. Like Alternative C, Alternative D features a number of condition-dependent flow and non-flow actions that would be triggered by resource conditions.
Under Alternative D, the total monthly release volume of October, November, and December would be equal to that under Alternative A to avoid the possibility of the operational tier differing from that of Alternative A, as established in the 2007 Interim Guidelines. The August volume was set to a moderate volume level (800 kaf in an 8.23 maf release year) to balance sediment conservation prior to a potential HFE and to address power production and capacity concerns. January through July monthly volumes were set at levels that roughly track Western Area Power Administration's contract rate of delivery. This produced a redistribution of monthly release volumes under Alternative D that would result in the most even distribution of flows of any alternative except for Alternative G. The allowable within-day fluctuation range from Glen Canyon Dam would be proportional to the volume of water scheduled to be released during the month (10 × monthly volume in kaf in the high-demand months of June, July, and August and 9 × monthly volume in kaf in other months). The down-ramp rate under Alternative D would be limited to no greater than 2,500 cfs/hour, which is 1,000 cfs/hour greater than what is allowed under Alternative A. The up-ramp rate would be 4,000 cfs/hour, and this is the same as what is allowed under Alternative A.
Experimentation under Alternative D includes testing the effects of the following actions: (1) Sediment-triggered spring and fall HFEs through the entire 20-year LTEMP period, (2) 24-hour proactive spring HFEs in high volume years (≥10 maf release volume), (3) extension of the duration of up to 45,000 cfs fall HFEs for as many as 250 hours depending on sediment availability, (4) mechanical removal of trout near the Little Colorado River confluence, (5) trout management flows, (6) low summer flows in the second 10 years of the LTEMP period to allow greater warming, and (7) sustained low flows to improve the aquatic food base.
The objective of Alternative E is to provide for recovery of the humpback chub while protecting other important resources including sediment, the rainbow trout fishery at Lees Ferry, aquatic food base, and hydropower resources. Alternative E features a number of condition-dependent flow and non-flow actions that would be triggered by resource conditions.
Under Alternative E, monthly volumes would closely follow the monthly hydropower demand as defined by the contract rate of delivery. The total monthly release volume of October, November, and December, however, would be equal to that under Alternative A to minimize the possibility of the operational tier differing from that of Alternative A as established in the Interim Guidelines. In addition, lower monthly volumes (relative to Alternative A) would be targeted in August and September to reduce sediment transport during the monsoon period, when most sediment is delivered by the Paria River. The allowable within-day fluctuation range from Glen Canyon Dam would be proportional to the volume of water scheduled to be released during the month (12 × monthly volume in kaf in high power demand months of June, July, and August, and 10 × monthly volume in kaf in other months).
Experimentation under Alternative E includes testing the effects of the following actions: (1) Sediment-triggered fall HFEs through the entire 20-year LTEMP period, (2) sediment-triggered spring HFEs only in the second 10 years of the LTEMP period, (3) 24-hour proactive spring HFEs in high volume years (≥10 maf release volume), (4) reducing fluctuations before fall HFEs, (5) mechanical removal of trout near the Little Colorado River confluence, (6) trout management flows, and (7) low summer flows in the second 10 years of the LTEMP period to allow greater warming.
The objective of Alternative F is to provide flows that follow a more natural pattern of high spring, and low summer, fall, and winter flows while limiting sediment transport and providing for warming in summer months. In keeping with this objective, Alternative F does not feature some of the flow and non-flow actions of the other alternatives.
Under Alternative F, peak flows would be lower than pre-dam
Low base flows would be provided from July through January. These low flows would provide for warmer water temperatures, especially in years when releases are warm, and would also serve to reduce overall sand transport during the remainder of the year.
Other than testing the effectiveness of sediment-triggered HFEs, which would continue through the entire LTEMP period, there would be no explicit experimental or condition-dependent triggered actions under Alternative F.
The objective of Alternative G is to maximize the conservation of sediment, in order to maintain and increase sandbar size. Under Alternative G, flows would be delivered in a steady pattern throughout the year with no monthly differences in flow other than those needed to adjust operations in response to changes in forecast and other operating requirements such as equalization. In an 8.23 maf year, steady flow would be approximately 11,400 cfs.
Experimentation under Alternative G includes testing the effects of the following actions: (1) Sediment-triggered spring and fall HFEs through the entire 20-year LTEMP period, (2) 24-hour proactive spring HFEs in high volume years (≥10 maf release volume), (3) extension of the duration of up to 45,000 cfs fall HFEs for as many as 250 hours depending on sediment availability, (4) mechanical removal of trout near the Little Colorado River confluence, and (5) trout management flows.
Compact disc copies of the FEIS are available for public inspection at the following locations:
• J. Willard Marriott Library, University of Utah, 295 South 1500 East, Salt Lake City, Utah 84112.
• Cline Library, Northern Arizona University, 1001 S. Knoles Drive, Flagstaff, Arizona 86011-6022.
• Burton Barr Central Library, 1221 North Central Avenue, Phoenix, Arizona 85004.
• Page Public Library, 479 South Lake Powell Boulevard, Page, Arizona 86040.
• Grand County Library, Moab Branch, 257 East Center Street, Moab, Utah 84532.
• Sunrise Library, 5400 East Harris Avenue, Las Vegas, Nevada 89110.
• Denver Public Library, 10 West 14th Avenue Parkway, Denver, Colorado 80204.
• Natural Resources Library, U.S. Department of the Interior, 1849 C Street NW., Main Interior Building, Washington, DC 20240-0001.
U.S. International Trade Commission
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on September 1, 2016, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Netlist, Inc. of Irvine, California. Supplements to the Complaint were filed on September 22, 2016 and September 23, 2016. 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 memory modules and components thereof, and products containing same by reason of infringement of certain claims of U.S. Patent No. 8,756,364 (“the '364 patent”); U.S. Patent No. 8,516,185 (“the '185 patent”); U.S. Patent No. 8,001,434 (“the '434 patent”); U.S. Patent 8,359,501 (“the '501 patent”); U.S. Patent No. 8,689,064 (“the '064 patent”); and U.S. Patent 8,489,837 (“the '837 patent”). The complaint further alleges that an industry in the United States exists or is in the process of being established as required by subsection (a)(2) of section 337.
The complainant requests 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 Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
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 memory modules and components thereof, and products
(2) Pursuant to Commission Rule 210.50(b)(1), 19 CFR 210.50(b)(1), the presiding administrative law judge shall take evidence or other information and hear arguments from the parties or other interested persons with respect to the public interest in this investigation, as appropriate, and provide the Commission with findings of fact and a recommended determination on this issue, which shall be limited to the statutory public interest factors set forth in 19 U.S.C. 1337(d)(1), (f)(1), (g)(1);
(3) 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 complainant is:
(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:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
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.
On September 30, 2016, the Department of Justice lodged a proposed
In its Second Amended Complaint, the United States alleged claims related to violations of the Clean Water Act and applicable discharge permits at sewage treatment plants in Louisiana owned and operated by Johnson Properties, Inc. and its subsidiaries. Subsequently, the sewage treatment plants were sold to Intervening Defendant Total Environmental Solutions, Inc. (“TESI”). The United States, Louisiana, and TESI agreed to the Consent Decree with Respect to TESI (“the Consent Decree”) which was entered by the Court on December 21, 2000. In the Consent Decree, TESI committed to operate the sewage treatment plants without service interruption and implement compliance measures intended to cause the sewage treatment plants to achieve compliance with the requirements of the CWA and the applicable discharge permits. The proposed Consent Decree Modification would modify the Consent Decree by requiring TESI to achieve compliance with the requirements of the Clean Water Act and the applicable discharge permits by implementing additional compliance measures. The Modified Consent Decree also specifies procedures and a schedule pursuant to which TESI, after it implements the additional compliance measures, will request removal of STPs from the Modified Consent Decree. Finally, the proposed Consent Decree Modification would revised the stipulated penalty provisions.
The publication of this notice opens a period for public comment on the proposed Consent Decree Modification. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed Consent Decree Modification may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $62.75 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy of the proposed Consent Decree Modification without appendices, the cost is $8.75.
Civil Rights Division, Department of Justice.
60-day notice.
The Department of Justice (DOJ), Civil Rights Division, Voting Section will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until December 6, 2016.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Robert S. Berman, Deputy Chief, Department of Justice, Civil Rights Division, Voting Section, 950 Pennsylvania Avenue, 7243 NWB, (phone: 202-514-8690).
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4.
5.
6.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.
On September 30, 2016, the Department of Justice lodged a proposed Consent Decree and Judgment (“Consent Decree”) with the United States District Court for the Eastern District of New York in the lawsuit entitled
The United States filed a complaint in this action on the same day that the consent decree was lodged with the Court. The defendant is The New York Racing Association, Inc. (“Defendant”), located at 110-00 Rockaway Boulevard, Jamaica, New York, 11417. The complaint arises out of Defendant's operation of Aqueduct Racetrack in Ozone Park, New York, where it races, boards and feeds horses. The complaint alleges that Defendant, in the course of operation of Aqueduct Racetrack, violated the Clean Water Act (“CWA”), 33 U.S.C. 1311, 1319(b) and (d), and 33 U.S.C. 1342, as well as the conditions of Defendant's concentrated animal feeding operations General Permit issued under New York's State Pollutant Discharge Elimination System (“SPDES”) by discharging process wastewater, including animal wash water containing detergent, manure, and feed waste, into New York City's and New York State's storm sewer systems, which then flowed to tributaries of Jamaica Bay, which are navigable waters of the United States. The Complaint alleges claims for relief based on the following violations: (1) Unauthorized discharges of pollutants in violation of the CWA, 33 U.S.C. 1311(a); (2) unauthorized discharge of process wastewater to surface waters in violation of the CWA, 33 U.S.C. 1311(a), and Defendant's SPDES Permit; and (3) insufficient action to ensure clean water was excluded from concentrated waste areas in violation of the CWA, 33 U.S.C. 1311(a), and Defendant's SPDES and Concentrated Animal Feed Operations General Permits.
The Consent Decree provides for Defendant to pay a $150,000 civil penalty and to perform injunctive relief, including: (1) Implementing procedures to ensure that no discharges occur; (2) installing a “telemetry” system in manholes to alert employees of dry weather flows in the sewer system; and (3) creating a Web site page that makes stormwater-related information available to the public. Defendant implemented some injunctive relief prior to the lodging of the Consent Decree, including construction of special horse wash stalls that are connected to the sanitary sewer, and capping and disabling external hydrants that are located near storm drains. The Consent Decree further requires Defendant to implement a Supplemental Environmental Project at Defendant's
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $21.25 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy without the exhibits and signature pages, the cost is $10.25.
On September 30, 2016, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Western District of Virginia in the lawsuit entitled
The United States' Complaint (which was joined by Alabama, Kentucky, Tennessee, and Virginia) alleges,
The principal elements of the injunctive relief in the decree include an Environmental Management System; audits of mining operations, outfalls and treatment systems; a violation response procedure; a new compliance tracking database; training for its employees and contractors; and the establishment and maintenance of a publicly available Web site or portal that provides permit and violation information to the general public. Defendants must also establish a $4.5 million letter of credit and a standby trust that will guarantee funding for, and a mechanism to accomplish, compliance with the Clean Water Act and the work required by the settlement, should the companies fail to do so. Finally, Defendants must pay a civil penalty of $900,000.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $27.50 for the Consent Decree and Appendices A-E, and a check for $183.75 for Appendix F (735-page table of violations), if this appendix is desired, (25 cents per page reproduction cost) payable to the United States Treasury.
Employment and Training Administration, U.S. Department of Labor.
Notice of meeting.
Pursuant to of the Federal Advisory Committee Act (FACA), as amended, and of the Workforce Innovation and Opportunity Act (WIOA), notice is hereby given of the next meeting of the Native American Employment and Training Council (Council), as constituted under WIOA.
The meeting will begin at 9:00 a.m., (Eastern Daylight Time) on Tuesday, October 25, 2016, and continue until 5:00 p.m. that day. The meeting will reconvene at 9:00 a.m., on Wednesday, October 26, 2016, and adjourn at 5:00 p.m. that day. The period from 3:00 p.m. to 5:00 p.m. on October 25, 2016, will be reserved for participation and comment by members of the public.
The meeting will be held at the U.S. Department of Labor, Frances Perkins Building, 200 Constitution Avenue NW., Room C-5525, Washington, DC 20210.
Council members and members of the public are encouraged to arrive early to allow for security clearance into the Frances Perkins Building.
1. Present a valid photo ID to receive a visitor badge.
2. Know the name of the event being attended: The meeting event is the Native American Employment and Training Council (NAETC).
Visitor badges are issued by the security officer at the visitor entrance located at 3rd and C Streets NW after the visitor proceeds through the security screening. When receiving a visitor badge, the security officer will retain the visitor's photo ID until the visitor badge is returned to the security desk. Laptops and other electronic devices may be inspected and logged for identification purposes. Due to limited parking options, DC Metro's Judiciary Square station is the easiest way to access the Frances Perkins Building. The meeting will be open to the public.
Members of the public not present may submit a written statement on or before October 17, 2016, to be included in the record of the meeting. Statements are to be submitted to Athena R. Brown, Designated Federal Officer (DFO), U.S. Department of Labor, 200 Constitution Avenue NW., Room S-4209, Washington, DC, 20210 or by email at
Athena R. Brown, DFO, Division of Indian and Native American Programs, Employment and Training Administration, U.S. Department of Labor, Room S-4209, 200 Constitution Avenue NW., Washington, DC 20210. Telephone number (202) 693-3737 (VOICE) (this is not a toll-free number).
Pub. L. 92-463 Section 10(a)(2); 29 U.S.C. 3221(i)(4) Section 166(i)(4).
Notice.
The Department of Labor (DOL) is submitting the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Notice Requirements of the Health Care Continuation Coverage Provisions,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before November 7, 2016.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-EBSA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Contact Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
This ICR seeks to extend PRA authority for the Notice Requirements of the Health Care Continuation Coverage Provisions information collection. The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) provides that, under certain circumstances, a group health plan participant or beneficiary who meets the COBRA qualified beneficiaries definition may elect to continue group health coverage temporarily following a qualifying event that would otherwise result in loss of coverage. This ICR covers the information collection requirements for plan administrators to distribute notices as follows: A general notice to be distributed to all participants in group health plans subject to the COBRA; an employer notice that must be completed by the employer upon the occurrence of a qualifying event; a notice and election form to be sent to a participant upon the occurrence of a qualifying event that might cause the participant to lose group health coverage; an employee notice that may be completed by a qualified beneficiary upon the occurrence of certain qualifying events such as divorce or disability; and, two other notices, one of early termination and the other a notice of unavailability. Also included in the ICR are two model notices that the Department believes will help reduce costs for service providers in preparing and delivering notices to comply with the regulations. Employee Retirement Income Security Act sections 606 and 608 authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on October 31, 2016. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Application for a Permit to Fire More than 20 Boreholes and/or for the Use of Nonpermissible Blasting Units, Explosives, and Shot-firing Units; Posting Notices of Misfires,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before November 7, 2016.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-MSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Application for a Permit to Fire More than 20 Boreholes and/or for the Use of Nonpermissible Blasting Units, Explosives, and Shot-firing Units; Posting Notices of Misfires information collection. More specifically, this ICR pertains to the process by which a coal mine operator applies for a permit to fire more than 20 shots and to use nonpermissible explosives and/or shot-firing units. An application contains the safeguards the mine operator will employ to protect miners while using requested blasting items. Federal Mine Safety and Health Act of 1977 sections 101(a) and 103(h) authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on December 31, 2016. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Bureau of Labor Statistics Data Users Advisory Committee will meet on Thursday, November 10, 2016. The meeting will be held in the Postal Square Building, 2 Massachusetts Avenue NE., Washington, DC.
The Committee provides advice to the Bureau of Labor Statistics from the points of view of data users from various sectors of the U.S. economy, including the labor, business, research, academic, and government communities, on technical matters related to the collection, analysis, dissemination, and use of the Bureau's statistics, on its published reports, and on the broader aspects of its overall mission and function.
The meeting will be held in Meeting Rooms 1, 2, and 3 of the Janet Norwood Conference and Training Center. The schedule and agenda for the meeting are as follows:
The meeting is open to the public. Any questions concerning the meeting should be directed to Kathy Mele, Data Users Advisory Committee, on 202.691.6102. Individuals who require special accommodations should contact Ms. Mele at least two days prior to the meeting date.
Occupational Safety and Health Administration (OSHA), Labor.
Renewal of the NACOSH charter.
The Secretary of Labor (Secretary) will renew the charter for NACOSH.
Ms. Michelle Walker, OSHA Directorate of Technical Support and Emergency Management, Occupational Safety and Health Administration, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2350 (TTY (877) 889-5627); email
The Secretary will renew the NACOSH charter. The charter will expire two years from the date it is filed.
NACOSH was established by Section 7(a) of the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 651, 656) to advise, consult with and make recommendations to the Secretary and the Secretary of Health and Human Services on matters relating to the administration of the OSH Act. NACOSH is a non-discretionary advisory committee of indefinite duration.
NACOSH operates in accordance with the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2), its implementing regulations (41 CFR part 102-3), and OSHA's regulations on NACOSH (29 CFR part 1912a). Pursuant to FACA (5 U.S.C. App. 2, 14(b)(2)), the NACOSH charter must be renewed every two years.
The new charter increases the estimated annual operational costs for NACOSH by approximately 3 percent (to $186,500 from $181,000).
The new NACOSH charter is available to read or download at
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority granted by 29 U.S.C. 656; 5 U.S.C. App. 2; 29 CFR part 1912a; 41 CFR part 102-3; and Secretary of Labor's Order No. 1-2012 (77 FR 3912 (1/25/2012)).
Office of Federal Procurement Policy, Office of Management and Budget.
Proposed new Office of Management and Budget Circular No. A-XXX, “Implementing Category Management for Common Goods and Services.”
The Office of Federal Procurement Policy (OFPP) in the Office of Management and Budget (OMB) is proposing to issue a new OMB Circular, Implementing Category Management for Common Goods and Services, to codify category management, a strategic practice where Federal contracting for common goods and services is managed by categories of spending across the Government and supported by teams of experts. The Circular establishes key principles, and strategies and policies, roles and responsibilities, and metrics to measure success.
Interested parties should submit comments in writing to the address below on or before November 7, 2016.
Comments may be submitted by any of the following methods: Online at
Darbi Dillon, Office of Federal Procurement Policy, 1800 G Street NW., Washington, DC 20006, at 202-395-1008.
Category management is an effective business practice for reducing duplication in contracting, better leveraging the government's buying power, and promoting the use of best in class solutions government-wide. Historically, the vast majority of common agency needs—such as for information technology, professional services, medical supplies, human capital, security and protection, and transportation and logistics—have been acquired in a disaggregated manner resulting in a sub-optimization of the Government's buying power and diminished Federal Government's market profile. Category management provides a pathway for agencies to move away from managing purchases and prices individually across thousands of procurement units and towards managing entire categories of common spend with collaborative decision-making. As a result, institutionalizing category management as the principal way in which all Executive Branch agencies acquire and manage the roughly $270B in annual spending on common goods and services will help taxpayers realize better value from their acquisition investments in every day needs and, equally important, allow contracting offices to give greater attention to their agency's mission critical acquisitions.
For more than a decade, the Office of Management and Budget (OMB) has worked with agencies on government-wide initiatives to promote strategic sourcing—
In December 2014, the Office of Federal Procurement Policy (OFPP) announced category management as the new broader model for organizing how the Federal Government manages the acquisition of commonly acquired goods and services. The memo outlined a series of specific actions to enable the identification of best in class vehicles within each common spending area as well as opportunities to change inefficient consumption patterns. The Category Management Leadership Council (CMLC), comprised of the largest buying agencies, divided the government's common spending into 10 categories and assisted OMB in appointing recognized market experts to serve as category managers. Noteworthy progress has already been made in breaking down agency silos and acting as the world's largest buyer. For example, in the Information Technology category 45% of spend on workstations has been directed to three identified best in class solutions with a goal to reduce the number of contracts for workstations by 20% by the end of fiscal year 2016. Furthermore, government-wide buying events for laptops and desktops resulted in more than 15% savings on average. In addition, consistent with the direction in the Federal Information Technology Acquisition Reform Act, two new government-wide software agreements were established to increase agency use of enterprise license agreements and help agencies move away from the tens of thousands of agreements that have been traditionally negotiated to meet these needs.
This proposed OMB Circular brings together and builds on these efforts and expands upon their concepts of economy and efficiency by establishing category management as the principal way in which the government acquires and manages its common requirements. The circular addresses (1) key principles, (2) strategies and policies, (3) governance structures, and (4) metrics to measure success.
Of particular note, the proposed Circular would:
1.
2.
3.
4.
5.
This Circular brings together these earlier policies and expands upon their concepts of economy and efficiency to establish the key principles, strategies, policies, processes, governance structure, and roles and responsibilities to implement CM fully as the principal
6.
7.
a. Development of requirements that address the majority of common end-user needs through the use of data analytics, application of best in class practices, and understanding of both industry and end-user customer need;
b. reduction in number of duplicate contract vehicles for the same, or similar, requirements;
c. improvement of mission value and total cost of ownership through activities like better requirements definition, demand aggregation to reduce unit pricing where appropriate, improved asset management, and greater visibility of pricing, usage, and performance data;
d. strengthened demand management practices to reduce inefficient buying;
e. advancement of statutory, regulatory, and Federal policy objectives, such as increasing the use of small business, competition, strengthening sustainability and accessibility requirements, maximizing the use of procurement preference programs, and supporting other policies required by statute and the Federal Acquisition Regulation (FAR); and
f. improved supplier relationship management.
8.
a.
(1)
(a) A BIC contract sourcing solution is one that:
(i) Has been developed by cross-functional teams using rigorous requirements definition and planning processes;
(ii) enables customers to take advantage of effective pricing strategies;
(iii) follows category management principles (outlined in section 7), including data driven demand management practices; and
(iv) has had its performance independently validated.
(b) To help the workforce understand the intended use of the contract sourcing solution, the CMX shall assign each one of the following two designations:
(i) BIC preferred contract sourcing solution—This designation is designed to encourage, but not compel, agency use of an identified contract solution. The CMX must assign this designation to a BIC solution except where OMB has determined, after considering the recommendations of the CMX and CMLC, that mandatory use of the solution is more appropriate and in the best interest of the government.
The CMX may require agencies to provide information and analysis, such as comparisons of pricing, terms and condition, or vendor performance, to explain when they do not use a BIC
(ii) BIC mandatory contract sourcing solution—This designation is designed to support a Government-wide migration to a solution that is mature and market-proven, such as a previously designated BIC preferred sourcing solution with a demonstrated record of success. This designation must be approved by OMB. In addition, OMB will issue appropriate management policy that explains the agency migration process to the mandatory solution and provides an exception process for agencies to justify deviations from the mandatory policy.
(c) To reduce contract duplication and take advantage of existing BIC contract sourcing solutions, agencies must take the following steps:
(i) After first considering required sources of supplies and services, which are set forth in FAR 8.002 and FAR 8.003, and determining such sources do not satisfy their requirements, agencies must review information on the Acquisition Gateway to determine if there are BIC preferred or BIC mandatory contract sourcing solutions to address their requirements.
(ii) If the requirement may be met by a mandatory BIC contract sourcing solution, agencies must review the applicable OMB management policy and follow the migration process or, if necessary, exception process to justify deviations from the policy.
(iii) If the requirement may be met by a preferred BIC contract sourcing solution, the agency must determine if any information or analysis is required where the agency does not plan to use the preferred solution and follow the instructions provided by the CMX on the Gateway for submitting the analysis.
(iv) If there are no BIC solutions identified on the Gateway, and the agency is seeking to establish a Government-wide, multi-agency or agency-wide vehicles, the agency must follow any policy OMB has issued to address the establishment of business cases.
(d) To support the use of BIC contract sourcing solutions, and to facilitate awareness by the acquisition workforce, the GSA Government-wide Program Management Office (PMO) will post information on BIC contract sourcing solutions on the Acquisition Gateway. In addition, the PMO will ensure, to the maximum extent practicable, that information on BIC sourcing solutions is accessible in a consistent and clear manner with a common look and feel that will facilitate easy understanding and application by the acquisition workforce. The PMO will work with the CMLC, OMB, CMXs and other stakeholders to provide templates, as necessary, to support the submission of agency information required in connection with a BIC preferred or mandatory contract sourcing solution.
(2)
(3)
(a) Seek data and information—Contracting officers, program managers, and other acquisition officials must routinely use the Acquisition Gateway and other designated sources to seek data such as prices paid, terms and conditions, best practices, sustainability requirements, past performance, competition rates, small business goals, and other information that will help them conduct thorough analyses and negotiate the best deal for the taxpayer (see section 10 below);
(b) Share data and information—Program managers, contracting professionals, requiring officials, and contracting officer representatives must have access to relevant information and data to plan for and manage solutions and needs. Consistent with applicable law, agencies shall not enter into any contractual agreement that restricts the Federal Government's ability to share, within the Government, relevant contract costs and prices, terms and conditions, and other information needed to conduct adequate market research. Agencies should use best practices in crafting appropriate contract language to ensure non-proprietary pricing and terms and conditions are made available to other Government agencies in order to ensure implementation of category management principles in leveraging the Government's buying power.
(c) Monitor and Measure progress—CMXs, agencies, and OMB must track implementation and long-term execution success through the assessment of metrics, including the approved Category Management Cross-Agency Priority Goals of savings, reduced duplication, Spend Under Management (SUM), and small business goals, as well as other relevant category measures, like green procurement goals and/or impacts to the small business industrial base (see section 11).
9.
a.
(1) Approval of Government-wide strategies for core categories and certain subcategories, as appropriate;
(2) approval of over-arching Best in Class criteria and procedures, and any subsequent changes;
(3) provide advice to OMB on recommendations by CMX to designate BIC contract sourcing solution as mandatory and on policy for agency migrations and exceptions to use of such solutions;
(4) assessment of the performance of Government-wide strategies and solutions—to include small business
(5) approval of any changes to the Government-wide category structure and governance.
b.
(1) Set the CM strategic policy direction;
(2) issue CM policies, guidance, instructions and directives to Federal agencies,
(3) appoint CMLC members and chair the CMLC;
(4) nominate lead agencies for each category to be the Government-wide Category Center of Excellence (CoE), in consultation with the CMLC (reference CoE roles and responsibilities in this section);
(5) review the CoE recommendations for CMXs and upon CMLC approval, formally designate the Government-wide CMXs;
(6) develop reporting requirements to assess agencies' progress toward increasing their Spend Under Management (see section 11 below);
(7) determine and measure supporting Cross-Agency Priority Goals or other Governmentwide goals and metrics;
(8) otherwise shape and monitor the government's efforts to implement CM effectively.
c.
(1) Development and management of the tools and resources to support CM to include the Acquisition Gateway (see section 10 below);
(2) creation, in consultation with OMB, and maintenance of Category Management instructions and standard procedures;
(3) maintain the category structure and taxonomy;
(4) analysis of Government-wide spending data and other core support for all Government-wide common spend categories;
(5) sharing training and educational materials regarding category management;
(6) collaboration with Federal agencies, vendors, and other stakeholders to facilitate feedback on customer satisfaction on Government-wide common category solutions and generate ideas for continuous improvement; and
(7) coordination for the delegations of procurement authority for Government-wide category sourcing
The GSA voting member on the CMLC represents the interests of GSA as an organization, and is responsible for communicating and coordinating all relevant CM information to the GSA stakeholders.
d.
(1) In consultation with the CMLC and OFPP, nominate a category subject matter expert to serve as the Government-wide CMX;
(2) when appropriately delegated authority, serve as the executive agent for sourcing requirements approved in the category strategic plan; and
(3) manage all aspects of the category strategic plan, including conducting all reviews, and obtaining all approvals required by law, regulation, and policy prior to awarding any Government-wide contract sourcing solutions.
e.
f.
(1)
(a) Establishing processes and policies that will ensure this Circular and the principles of CM are applied throughout their agency;
(b) submitting to OMB the agency's SUM analysis (see section 11) in accordance with section 13 below; and
(c) coordinating with OMB, the relevant Government-wide and agency-level CMX's, and other interested parties on category management issues.
(2)
g.
h.
i.
j.
Many agencies have CM and related management structures already in place, and they are encouraged to leverage these in identifying their CMAOs, agency-level CMXs, and team members, as needed.
10.
The Acquisition Gateway will support the Federal acquisition workforce by housing the best practices, contracts, community and other tools to aid the workforce in the implementation of the category strategies. To ensure the Acquisition Gateway continues to meet the demands of the acquisition workforce in response to the implementation of CM, GSA will develop a process for soliciting regular feedback, input, and suggestions from users of the Gateway in order to maintain the relevance of the tool.
11.
OMB will assess the 24 Agencies subject to the CFO Act on their SUM progress not less than annually in accordance with the requirements outlined in OMB Circular A-11 and associated budget guidance. Agencies' SUM maturity assessments will be used to engage agency leaders in regularly reviewing progress toward their goals. Additionally, CMXs will use this information to develop strategies to bring more agency dollars within their category under management.
b.
c.
12.
13.
Agencies must provide contact information for the CMAO and the agency CMXs to the GSA PMO at (insert generic email box) and provide updates as personnel change. While Agencies that are not subject to the CFO Act are not required to have identified CMAOs, they are encouraged to identify accountable officials who can increase the use of existing contracts, contribute subject matter experts, and drive the adoption of CM principles in their agencies.
14.
15.
Executive Office of the President, Office of Management and Budget.
Notice of availability and request for comments.
The Office of Management and Budget (OMB) is requesting comments on proposed Circular A-108, “Federal Agency Responsibilities for Review, Reporting, and Publication under the Privacy Act.” The proposed Circular is available at
Comments are requested on the proposed Circular no later than October 28, 2016.
All comments should be submitted via
Jasmeet Seehra, Office of Management and Budget, Office of Information and Regulatory Affairs, at
This OMB Circular describes agency responsibilities for implementing the review, reporting, and publication requirements of the Privacy Act of 1974 and related OMB policies. This Circular supplements and clarifies existing OMB guidance, including OMB Circular No. A-130,
National Aeronautics and Space Administration (NASA).
This notice is issued in accordance with 51 U.S.C. 20144(c). The 3D-Printed Habitat Challenge (3DP), Structural Member Competition is open and teams that wish to compete may now register. Centennial Challenges is a program of prize competitions to stimulate innovation in technologies of interest and value to NASA and the nation. The 3D-Printed Habitat Challenge Phase 2 Structural Member is a prize competition with a $1,100,000 total prize purse to develop the fundamental technologies necessary to manufacture an off-world habitat using
Challenge registration opens October 7, 2016, and will remain open until January 31, 2017.
Other important dates:
The challenge competition will take place at: Caterpillar Edwards Demonstration and Learning Center, 5801 N. Smith Road, Edwards, IL 61528.
To register for or get additional information regarding the 3D Printed Habitat Challenge, please visit:
For general information on the NASA Centennial Challenges Program please visit:
The goal of the 3D-Printed Habitat Challenge is to foster the development of new technologies necessary to additively manufacture a habitat using local indigenous materials with, or without, recyclable materials. The Challenge is broken into three parts as described below.
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The 3D Printed Habitat Structural Member Competition purse is $1,100,000 (one million one hundred thousand dollars) to be disbursed as follows:
To be eligible to win a prize, competitors must:
(1) Register and comply with all requirements in the rules and Team Agreement;
(2) In the case of a private entity, shall be incorporated in and maintain a primary place of business in the United States, and in the case of an individual, whether participating singly or in a group, shall be a citizen or permanent resident of the United States; and
(3) Not be a Federal entity or Federal employee acting within the scope of their employment.
The complete rules for the 3D-Printed Habitat Challenge can be found at:
National Credit Union Administration (NCUA).
Notice and request for comment.
The National Credit Union Administration (NCUA), as part of a continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a revision of a previously approved collection, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35).
Written comments should be received on or before December 6, 2016 to be assured consideration.
Interested persons are invited to submit written comments on the information collection to Troy Hillier, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314; Fax No. 703-519-8579; or Email at
Requests for additional information should be directed to the address above.
The regulation contains a number of reporting requirements where a credit union seeks to exercise flexibility under the regulations. These requirements enable NCUA to monitor the FCU's financial condition for safety and soundness purposes and helps to assure that FCUs are properly and adequately protected against potential losses due to insider abuse such as fraud and embezzlement.
By John H. Brolin, Acting Secretary of the Board, the National Credit Union Administration, on October 3, 2016.
U.S. Office of Personnel Management.
Notice.
The Federal Prevailing Rate Advisory Committee is issuing this notice to cancel the October 20, 2016, public meeting scheduled to be held in Room 5A06A, U.S. Office of Personnel Management Building, 1900 E Street NW., Washington, DC. The original
Madeline Gonzalez, 202-606-2838, or email
Under the Social Security Amendments of 1983 (Pub. L. 98-21), which amends Section 202(t) of the Social Security Act, effective January 1, 1985, the Tier I or the overall minimum (O/M) portion of an annuity, and Medicare benefits payable under the Railroad Retirement Act to certain beneficiaries living outside the U.S., may be withheld. The benefit withholding provision of Public Law 98-21 applies to divorced spouses, spouses, minor or disabled children, students, and survivors of railroad employees who (1) initially became eligible for Tier I amounts, O/M shares, and Medicare benefits after December 31, 1984; (2) are not U.S. citizens or U.S. nationals; and (3) have resided outside the U.S. for more than six consecutive months starting with the annuity beginning date. The benefit withholding provision does not apply, however to a beneficiary who is exempt under either a treaty obligation of the U.S., in effect on August 1, 1956, or a totalization agreement between the U.S. and the country in which the beneficiary resides, or to an individual who is exempt under other criteria specified in Public Law 98-21.
RRB Form G-45,
Request for information.
Many modern service providers give people access to their own data in machine readable format to download and use as they see fit. Proponents of increased data portability point to numerous, significant benefits for users, service providers, and the broader public. For users, perhaps the most important benefits are the ability to create backups of their most important data, like photographs, tax returns, and other financial information while reducing the danger of becoming locked-in to a single service provider, especially in a world where service providers may change business models or discontinue products.
Consumers may also benefit from increased competition. If consumers cannot switch easily between platforms, then it may be difficult for would-be services to enter the market, potentially resulting in less innovation or higher prices. Increasing data portability may induce businesses to compete with one another to offer better prices and higher quality services so as to win or retain a customer's business. Service providers, meanwhile, can benefit from offering data portability to increase user trust through the transparency and ease of switching data portability provides, and to help manage the termination of services. Finally, the public benefits when data portability increases competition, provides some sense of accountability, and promotes transparency as to what information a provider is holding.
Others may point to potential private and public downsides. With lower switching costs, businesses might adjust their business models and become more selective in their initial customer acquisition strategy or invest less in their customer relationships, which might leave some sets of customers worse off than before. Some privacy and security advocates also worry that the strength of data portability—easier sharing of information—could encourage more information sharing, including when it might be inadvisable from a privacy perspective or when a criminal successfully breaks into an unsecured service.
The Office of Science and Technology Policy (OSTP) is interested in understanding the benefits and drawbacks of increased data portability as well as potential policy avenues to achieve greater data portability. The views of the American people, including stakeholders such as consumers, academic and industry researchers, and private companies, are important to inform an understanding of these questions.
Responses must be received by November 23, 2016 to be considered.
You may submit responses by any of the following methods (online is preferred):
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Alexander Macgillivray (202) 494-0085.
OSTP is particularly interested in responses related to the following topics: (1) The potential benefits and drawbacks of increased data portability; (2) the industries or types of data that would most benefit or be harmed by increased data portability; (3) the specific steps the Federal Government, private companies, associations, or others might take to encourage or require greater data portability (and the important benefits or drawbacks of each approach); (4) best practices in implementing data portability; and (5) any additional information related to data portability policy making, not requested above, that you believe OSTP should consider with respect to data portability.
On August 25, 2016, NYSE MKT LLC (“Exchange” or “NYSE MKT”) filed with the Securities and Exchange Commission (“Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
This order provides notice of Amendment No. 2 and approves the proposal, as modified by Amendment No. 2, on an accelerated basis.
The Exchange proposes to amend Exchange Rule 67—Equities to (1) change system functionality to implement the Plan; (2) clarify the operation of certain exceptions to the Trade-at Prohibition on Pilot Securities in Test Group Three; (3) amend the LULD price controls set forth in Exchange Rule 80C—Equities; and (4) amend the Exchange's trading collar calculation set forth in Exchange Rule 1000 Equities.
The Exchange proposes to accept Trade-at Intermarket Sweep Orders (“TAISO”) in all securities, and that TAISOs must be designated as immediate or cancel (“IOC”), may include a minimum trade size, and do not route. The Exchange would immediately and automatically execute a TAISO against the displayed and non-displayed bid (offer) up to its full size in accordance with and to the extent provided by Exchange Rules 1000—Equities—1004—Equities and will then sweep the Exchange's book as provided in Rule 1000(e)(iii)—Equities. Any portion of the TAISO that is not executed would be immediately and automatically cancelled. The Exchange proposes to accept TAISOs before the Exchange opens and they would be eligible to participate in the opening transaction at its limit price. TAISOs would not be accepted during a trading halt or pause for participation in a reopening transaction. Finally, the Exchange would not allow TAISOs to be entered as e-Quotes, d-Quotes, or g-Quotes.
The Exchange proposes that references in Exchange rules to the minimum price variation (“MPV”) would mean the quoting minimum price variation specified in paragraphs (c), (d), and (e) of Exchange Rule 67.
The Exchange proposes that Retail Price Improvement Orders (“RPI”) for Pilot Securities in Test Groups Two and Three must be entered with a limit price and an offset in a $0.005 pricing increment.
The Exchange proposes procedures for handling, executing, re-pricing and displaying of certain order types and order type instructions applicable to Pilot Securities in Test Group Three.
The Exchange proposes that an incoming automatically executing order to sell (buy) will trade with displayable bids (offers) and route to protected bids (offers) before trading with an unexecuted Market Order held undisplayed at the same price. After trading or routing, or both, any remaining balance of such an incoming automatically executing order would satisfy any unexecuted Market Orders in time priority before trading with non-displayable interest on parity.
The Exchange proposes that, on entry, Day ISOs would be eligible for the TAISO exception set forth in proposed Rule 67(e)(4)(C)(ix). In addition, an IOC ISO to buy (sell) would not trade with non-displayed interest to sell (buy) that is the same price as a protected offer (bid) unless the limit price of such IOC ISO is higher (lower) than the price of the protected offer (bid).
The Exchange proposes restrictions applicable to resting non-displayed interest,
First, the Exchange proposes that resting non-displayed interest to buy (sell) would not trade at the price of a protected offer (bid). Second, a resting non-displayed order to buy (sell) would not trade at the price of a protected bid (offer) unless the incoming order to sell (buy) is a TAISO, Day ISO, or IOC ISO that has a limit price lower (higher) than the price of the non-displayed interest. Finally, the Exchange proposes that resting non-displayed interest will be either routed, cancelled, or re-priced, consistent with the terms of the order.
The Exchange proposes that only buy and sell orders that are entered into the Cross Function pursuant to Supplementary Material .10 to Rule 76—Equities and that satisfy the Block Size definition would be eligible for the Block Size exception to the Trade-at Prohibition.
The Exchange proposes that incoming orders designated with a specific self-trade prevention (“STP”) Modifier, STPN, would cancel before routing or trading with non-displayed orders if the opposite-side resting interest marked with an STP modifier with the same market participant identifier (“MPID”) is a displayed order.
The Exchange proposes to reject g-Quotes and Buy Minus/Zero Plus Orders.
The Exchange proposes that in all Pilot Securities, d-Quotes to buy (sell) would not exercise discretion if (i) exercising discretion would result in an execution equal to or higher (lower) than the price of a protected offer (bid), or (ii) the price of a protected bid (offer) is equal to or higher (lower) than the filed price of the d-Quote.
The Exchange proposes to add the phrase “or Intermarket Sweep Orders” to the definition of TAISO as well as to the TAISO exception to the Trade-at Prohibition to clarify that ISOs may be routed to execute against the full displayed size of the Protected Quotation that was traded at.
The Exchange proposes to amend the Block Size exception to the Trade-at Prohibition to allow execution on multiple Trading Centers to comply with Regulation NMS.
The Exchange proposes to add a new subsection (8) to Rule 80C(a)—Equities that would specify that, after the Exchange opens or reopens an Exchange-listed security but before receiving Price Bands from the Securities Information Processor (“SIP”) under the LULD Plan, the Exchange would calculate Price Bands based on the first Reference Price provided to the SIP and, if such Price Bands are not in the MPV for the security, round such Price Bands to the nearest price at the applicable MPV.
The Exchange proposes that Trading Collars for both buy and sell orders that are not in the MPV for the security would be rounded down to the nearest price at the applicable MPV.
Both comment letters express support for the proposed rule change and suggest that the Commission should approve the proposal. In Comment Letter No. 1, the commenters stated that if the proposal is approved as proposed, then NYSE would be able to meet the October 3, 2016 implementation date. Further, in Comment Letter No. 1, the commenters stated their belief that the requirements from the Commission have been unclear. In Comment Letter No. 2, the commenter questioned Commission staff's authority.
After careful review of the proposed rule change, as modified by Amendment No. 2, and the comment letters, the Commission finds that the proposal, as modified by Amendment No. 2, is consistent with the requirements of the Act, Rule 608 of Regulation NMS,
As noted in the Approval Order, the Plan is by design, an objective, data-driven test to evaluate how a wider tick size would impact trading, liquidity, and market quality of securities of smaller capitalization companies. In addition, the Plan is designed with three Test Groups and a Control Group, to allow analysis and comparison of incremental market structure changes on the Pilot Securities and is designed to produce empirical data that could inform future policy decisions. As such, any proposed changes targeted at particular Test Groups during the Pilot Period should be necessary for compliance with the Plan.
The Exchange proposes changes to modify how the Exchange will handle orders during the Pilot Period. Specifically, the Exchange proposes to accept TAISOs in all securities. In addition, the Exchange proposes to make changes to d-Quotes for all Pilot Securities by limiting instances when d-Quotes would exercise discretion.
The Exchange proposes changes for Pilot Securities in Test Group Three to comply with the Trade-at Prohibition, including a different priority for execution of resting orders, how certain ISOs would be handled in Test Group
In addition, the Exchange proposes to amend provisions related to two exceptions to the Trade-at Prohibition. First, the Exchange proposes amend the TAISO definition to reflect that ISOs may be routed to the full displayed size of a Protected Quotation that is traded-at and to make the corresponding change to the specific trade-at exception. Second, the Exchange proposes to amend the exception for Block Size orders to allow an order of Block Size to be executed on multiple Trading Centers.
The Commission believes that these changes are reasonably designed to comply with the Plan. Further, the Commission believes that the proposed changes that are targeted at particular Test Groups are necessary for compliance with the Plan. Accordingly, the Commission finds that these changes are consistent with Section 6(b)(5) of the Act
In addition, the Exchange proposes to adopt a rule to specify how the Exchange will calculate LULD Price Bands after the Exchange opens or reopens. The Commission believes that this change should help to ensure that trading does not occur outside of Price Bands when LULD is in effect.
Finally, the Exchange proposes to specify that Trading Collars that are not in the MPV would be rounded down to the nearest price. The Commission believes that this change should provide clarity in the Exchange's rules.
For these reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 2, is consistent with the requirements of the Act and Rule 608 of Regulation NMS.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 2 is consistent with the Exchange 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.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549-1090, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSEMKT-2016-83 and should be submitted on or before October 28, 2016.
The Commission finds good cause to approve the proposed rule change, as modified by Amendment No. 2, prior to the thirtieth day after the date of publication of notice of Amendment No. 2 in the
The Commission believes that the proposals related to LULD Price Bands and Trading Collars should provide clarity on instances where they are not in the MPV. The Commission believes that the proposals related to the Pilot are designed to ensure compliance with the Plan. The Commission notes that the Pilot is scheduled to start on October 3, 2016, and accelerated approval would ensure that the rules of the Exchange would be in place for the start of the Pilot. Accordingly, the Commission finds good cause, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 3, 2016, NASDAQ PHLX LLC (the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission is extending the 45-day time period for Commission action on the proposed rule change. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider and take action on the Exchange's proposed rule change.
Accordingly, pursuant to Section 19(b)(2)(A)(ii)(I) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 25, 2016, New York Stock Exchange LLC (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
This order provides notice of Amendment No. 2, and approves the proposal, as modified by Amendment No. 2, on an accelerated basis.
The Exchange proposes to amend Exchange Rule 67 to: (1) Change system functionality to implement the Plan; (2) clarify the operation of certain exceptions to the Trade-at Prohibition on Pilot Securities in Test Group Three; (3) amend the LULD price controls set forth in Exchange Rule 80C; and (4) amend the Exchange's trading collar calculation set forth in Exchange Rule 1000.
The Exchange proposes to accept Trade-at Intermarket Sweep Orders (“TAISO”) in all securities, and that TAISOs must be designated as immediate or cancel (“IOC”), may include a minimum trade size, and do not route. The Exchange would immediately and automatically execute a TAISO against the displayed and non-displayed bid (offer) up to its full size in accordance with and to the extent provided by Exchange Rules 1000—1004 and will then sweep the Exchange's book as provided in Rule 1000(e)(iii), and the portion not so executed will be immediately and automatically cancelled. The Exchange would accept TAISOs before the Exchange opens and would allow TAISOs to be eligible to participate in the opening transaction at its limit price, but would not be accept TAISOs during a trading halt or pause for participation in a reopening transaction. Finally, the Exchange would not allow TAISOs to be entered as e-Quotes, d-Quotes, or g-Quotes.
The Exchange proposes that references in Exchange rules to the minimum price variation (“MPV”) would mean the quoting minimum price variation as specified in Exchange Rule 67 (c), (d), and (e). Pre-opening indications
The Exchange proposes that Retail Price Improvement orders must be entered with a limit price and an offset in a $0.005 increment.
The Exchange proposes procedures for handling, executing, re-pricing and displaying of certain order types and order type instructions applicable to Pilot Securities in Test Group Three.
The Exchange proposes that incoming automatically executing order to sell (buy) will trade with displayable bids (offers) and route to protected bids (offers) before trading with an unexecuted Market Order held undisplayed at the same price. After trading or routing, or both, any remaining balance of such an incoming automatically executing order would satisfy any unexecuted Market Orders in time priority before trading with non-displayable interest on parity.
The Exchange proposes that on entry, Day ISOs will be eligible for the TAISO exception to the Trade-at Prohibition. In addition, an IOC ISO to buy (sell) would not trade with non-displayed interest to sell (buy) that is the same price as a protected offer (bid) unless the limit price of such IOC ISO is higher (lower) than the price of the protected offer (bid).
The Exchange proposes restrictions applicable to resting non-displayed interest,
First, the Exchange proposes that a resting non-displayed order to buy (sell) will not trade at the price of a protected offer (bid). Second, a resting non-displayed order to buy (sell) will not trade at the price of a protected bid (offer) unless the incoming order to sell (buy) is a TAISO, Day ISO, or IOC ISO that has a limit price lower (higher) than the price of the non-displayed orders. Finally, the Exchange proposes that resting non-displayed interest will be either routed, cancelled, or re-priced, consistent with the terms of the order.
The Exchange proposes that only buy and sell orders that are entered into the Cross Function pursuant to Supplementary Material .10 to Exchange Rule 76 and that satisfy the Block Size definition would be eligible for the Block Size exception to the Trade-at Prohibition.
The Exchange proposes that incoming orders designated with a certain self-trade prevention (“STP”) Modifier, STPN, would cancel before routing or trading with non-displayed orders if the opposite-side resting interest marked with an STP modifier with the same market participant identifier (“MPID”) is a displayed order.
The Exchange proposes that g-Quotes and Buy Minus/Zero Plus Orders would be rejected.
The Exchange proposes that in all Pilot Securities, d-Quotes to buy (sell) would not exercise discretion if (i) exercising discretion would result in an execution equal to or higher (lower) than the price of a protected offer (bid), or (ii) the price of a protected bid (offer) is equal to or higher (lower) than the filed price of the d-Quote.
The Exchange proposes to add phrase “or Intermarket Sweep Orders” (“ISO”) to the definition of TAISO as well as to the TAISO exception to the Trade-At Prohibition to clarify that ISOs may be routed to execute against the full displayed size of the Protected Quotation that was traded at.
The Exchange proposes to amend the Block Size Exception to the Trade-at Prohibition to allow execution on multiple Trading Centers to comply with Regulation NMS.
The Exchange proposes that after the Exchange opens or reopens an Exchange-listed security but before receiving Price Bands from the Securities Information Processor (“SIP”) under the LULD Plan, the Exchange would calculate Price Bands based on the first Reference Price provided to the
The Exchange proposes that Trading Collars for both buy and sell orders that are not in the MPV for the security would be rounded down to the nearest price at the applicable MPV.
Both comment letters express support for the proposed rule change and suggest that the Commission should approve the proposal. In Comment Letter No. 1, the commenters stated that if the proposal is approved as proposed, then NYSE would be able to meet the October 3, 2016 implementation date. Further, in Comment Letter No. 1, the commenters stated their belief that the requirements from the Commission have been unclear. In Comment Letter No. 2, the commenter questioned Commission staff's authority.
After careful review of the proposed rule change, as modified by Amendment No. 2, and the comment letters, the Commission finds that the proposal, as modified by Amendment No. 2, is consistent with the requirements of the Act, Rule 608 of Regulation NMS,
As noted in the Approval Order, the Plan is by design, an objective, data-driven test to evaluate how a wider tick size would impact trading, liquidity, and market quality of securities of smaller capitalization companies. In addition, the Plan is designed with three Test Groups and a Control Group, to allow analysis and comparison of incremental market structure changes on the Pilot Securities and is designed to produce empirical data that could inform future policy decisions. As such, any proposed changes targeted at particular Test Groups during the Pilot Period should be necessary for compliance with the Plan.
The Exchange proposes changes to modify how the Exchange will handle orders during the Pilot Period. Specifically, the Exchange proposes to accept TAISOs in all securities. In addition, the Exchange proposes to make changes to d-Quotes for all Pilot Securities by limiting instances when d-Quotes would exercise discretion.
The Exchange proposes changes for Pilot Securities in Test Group Three to comply with the Trade-at Prohibition, including a different priority for execution of resting orders, how certain ISOs would be handled in Test Group Three, how resting non-displayed orders would trade, how order with a STPN Modifier would be handled, and that g-Quotes and Buy Minus/Zero Plus orders will be rejected. The Exchange proposes to only permit buy and sell orders that are entered into the Cross Function pursuant to Supplementary Material .10 to Rule 76 to be eligible for the Block Size order exception to the Trade-at Prohibition.
In addition, the Exchange proposes to amend provisions related to two exceptions to the Trade-at Prohibition. First, the Exchange proposes amend the TAISO definition to reflect that ISOs may be routed to the full displayed size of a Protected Quotation that is traded-at and to make the corresponding change to the specific trade-at exception. Second, the Exchange proposes to amend the exception for Block Size orders to allow an order of Block Size to be executed on multiple Trading Centers.
The Commission believes that these changes are reasonably designed to comply with the Plan. Further, the Commission believes that the proposed changes that are targeted at particular Test Groups are necessary for compliance with the Plan. Accordingly, the Commission finds that these changes are consistent with Section 6(b)(5) of the Act
In addition, the Exchange proposes to adopt a rule to specify how the Exchange will calculate LULD Price Bands after the Exchange opens or reopens. The Commission believes that this change should help to ensure that trading does not occur outside of Price Bands when LULD is in effect.
Finally, the Exchange proposes to specify that Trading Collars that are not in the MPV would be rounded down to the nearest price. The Commission believes that this change should provide clarity in the Exchange's rules.
For these reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 2, is consistent with the requirements of the Act and Rule 608 of Regulation NMS.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 2 is consistent with the Exchange Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
The Commission finds good cause to approve the proposed rule change, as modified by Amendment No. 2, prior to the thirtieth day after the date of publication of notice of Amendment No. 2 in the
The Commission believes that the proposals related to LULD Price Bands and Trading Collars should provide clarity on instances where they are not in the MPV. The Commission believes that the proposals related to the Pilot are designed to ensure compliance with the Plan. The Commission notes that the Pilot is scheduled to start on October 3, 2016, and accelerated approval would ensure that the rules of the Exchange would be in place for the start of the Pilot. Accordingly, the Commission finds good cause, pursuant to Section 19(b)(2) of the Act,
It is therefore ordered that, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to modify the treatment of acquisition companies under IM-5900-7.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq proposes to modify IM-5900-7 to change the treatment of acquisition companies under that rule.
Nasdaq offers complimentary services under IM-5900-7 to companies listing on the Nasdaq Global and Global Select Markets in connection with an initial public offering, upon emerging from bankruptcy, or in connection with a spin-off or carve-out from another company (“Eligible New Listings”) and to companies that switch their listing from the New York Stock Exchange (“NYSE”) to the Global or Global Select Markets (“Eligible Switches”).
Nasdaq believes that the complimentary service program offers valuable services to newly listing companies, designed to help ease the transition of becoming a public company or switching markets, makes listing on Nasdaq more attractive to these companies, and also provides Nasdaq Corporate Solutions the opportunity to demonstrate the value of its services and forge a relationship with the company. The services offered include a whistleblower hotline, investor relations Web site, disclosure services for earnings or other press releases, webcasting, market analytic tools, and may include market advisory
Generally, Nasdaq will not permit the initial or continued listing of a company that has no specific business plan or that has indicated that its business plan is to engage in a merger or acquisition with an unidentified company or companies. However, in the case of a company whose business plan is to complete an initial public offering and engage in a merger or acquisition with one or more unidentified companies within a specific period of time (an “Acquisition Company”), Nasdaq will permit the listing if the company meets all applicable initial listing requirements, as well as the additional conditions described in IM-5101-2. These additional conditions generally require, among other things, that at least 90% of the gross proceeds from the initial public offering must be deposited in a “deposit account,” as that term is defined in the rule, and that the company complete within 36 months, or a shorter period identified by the company, one or more business combinations having an aggregate fair market value of at least 80% of the value of the deposit account at the time of the agreement to enter into the initial combination.
Acquisition Companies do not have operating businesses and tend to trade infrequently and in a tight range until the company completes an acquisition. In addition, Acquisition Companies issue few press releases and frequently do not have detailed Web sites. Therefore, upon listing, these companies do not generally need shareholder communication services, market analytic tools or market advisory tools, and generally would only benefit from the complimentary whistleblower hotline provided under IM-5900-7.
However, once an Acquisition Company completes a business combination with an operating company, the combined company is much like any other newly public company and could benefit from the complimentary services Nasdaq offers other newly public companies. Accordingly, Nasdaq proposes to include in the definition of an “Eligible New Listing” that receives complimentary services under IM-5900-7 an Acquisition Company that completes a business combination that satisfies the conditions in IM-5101-2(b) and that lists on the Global or Global Select Market in conjunction with that business combination.
For purposes of IM-5900-7, Nasdaq will treat a company previously listed on the Capital Market as listing on the Global or Global Select Market in conjunction with a business combination that satisfies the conditions in IM-5101-2(b) if it files an application to list on the Global or Global Select Market before completing the combination and demonstrates compliance with all applicable criteria within 60 days of completing the business combination. This additional time may be required, in some cases, to allow the issuance of shares in the transaction and then for the newly formed entity to obtain information from third parties to demonstrate compliance with the shareholder and public float requirements.
If the Acquisition Company is listed on the Global Market at the time it completes a business combination that satisfies the conditions in IM-5101-2(b) and remains listed on the Global Market or transfers to the Global Select Market, the complimentary period will commence on the date of such business combination.
Nasdaq also proposes to delete a reference in the existing rule text to “NASDAQ” when referring to the Global and Global Select Markets, to conform to other references to the Global and Global Select Markets within the rule. Finally, Nasdaq proposes to update the introductory note in IM-5900-7 to include the specific date that a prior change to the rule was approved. This change is designed to ease understanding of the rule and eliminate the need to cross-reference the approval order for that prior change.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
Nasdaq faces competition in the market for listing services,
Nasdaq also believes it is reasonable, and not unfairly discriminatory, to offer
In addition, because Acquisition Companies described in IM-5101-2 have little use for services upon listing, and because they will be eligible to receive services if they complete a business combination satisfying IM-5101-2(b), Nasdaq does not think it is unfairly discriminatory to modify the rule so that a company described in IM-5101-2 does not receive services upon listing.
An Acquisition Company could list on the Global Market at the time of its initial public offering, but never complete an acquisition that satisfies the requirements of IM-5101-2(b). While under the proposed rule change such a company would never receive complimentary services, Nasdaq does not believe that the services generally would be useful to the Acquisition Company and the Acquisition Company therefore would not suffer any meaningful detriment as a consequence.
Allowing an Acquisition Company up to 30 days after completing a business combination to start using the complimentary services reflects Nasdaq's experience that it can take companies a period of time to review and complete necessary contracts and training following their becoming eligible for those services. Allowing this modest 30-day period, if the company needs it, helps ensure that the company will have the benefit of the full period permitted under the rule to actually use the services, thus giving companies the full intended benefit.
Defining a company to be listing in conjunction with a business combination that satisfies the conditions in IM-5101-2(b) to include a company listed on the Capital Market that both filed an application to list on the Global or Global Select Market before completing the business combination and demonstrated compliance with all applicable criteria for the Global or Global Select Market within 60 days of completing the business combination reflects Nasdaq's experience that such a company may need a period of as long as 60 days to obtain information from third parties to demonstrate compliance with the listing requirements. Beginning the complimentary period for a company in this situation on the date of its listing on the Global or Global Select Market is consistent with the period provided to other Eligible New Listings and Eligible Switches, which begins on the date of listing. Moreover, prior to that point, there is no certainty as to whether the company will qualify for the Global or Global Select Market and be eligible to receive the services and, as a result, complimentary services could not be provided prior to that date. Nasdaq believes that this 60-day period appropriately recognizes the practical problem that a company may have with demonstrating compliance with the initial listing requirements for the Global or Global Select Market at exactly the time of its business combination. However, a company that takes advantage of this time period cannot further extend the start of the complimentary period by using an additional 30-day period to start using the complimentary services.
Nasdaq further believes that it is not unfairly discriminatory to limit this 60-day period to Acquisition Companies transitioning from the Capital Market to the Global or Global Select Market and to not also extend it to Acquisition Companies already listed on the Global Market. An Acquisition Company that is listed on the Global Market was required to have 400 round lot holders upon initially listing and is required to have 400 total holders for continued listing. As a result, Nasdaq expects it would be rare for a company already on the Global Market to need additional time to demonstrate compliance with this, or other, initial listing requirement. Nasdaq believes that this is a non-discriminatory reason to distinguish between these types of companies.
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. The proposed rule change reflects Nasdaq's ongoing assessment of the competitive market for listings and does not place any unnecessary burden on that competition. In many cases, an Acquisition Company will consider transferring to a new listing venue when it completes a business combination. The proposed rule change will allow Nasdaq to compete to retain these companies by offering them a package of complimentary services that assists their transition to being a traditional public company.
Nasdaq believes that when the complimentary period ends, a former Acquisition Company that had acquired an operating business will be more likely to continue to use the Nasdaq Corporate Solutions service or a competing service, whereas otherwise they may not be exposed to the value of these services and therefore may not purchase any. This will create additional users of the service class and enhance competition among service providers.
In addition, other service providers can also offer similar services to companies, thereby increasing competition to the benefit of those companies and their shareholders. Accordingly, Nasdaq does not believe the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order pursuant to: (a) Section 6(c) of the Investment Company Act of 1940 (“Act”) granting an exemption from sections 18(f) and 21(b) of the Act; (b) section 12(d)(1)(J) of the Act granting an exemption from section 12(d)(1) of the Act; (c) sections 6(c) and 17(b) of the Act granting an exemption from sections 17(a)(1), 17(a)(2) and 17(a)(3) of the Act; and (d) section 17(d) of the Act and rule 17d-1 under the Act to permit certain joint arrangements and transactions. Applicants request an order that would permit certain registered open-end management investment companies to participate in a joint lending and borrowing facility.
Legg Mason Global Asset Management Trust, Legg Mason Global Asset Management Variable Trust, Legg Mason Partners Income Trust, Legg Mason Partners Institutional Trust, Legg Mason Partners Money Market Trust, Legg Mason Partners Premium Money Market Trust, Legg Mason Partners Variable Income Trust, Master Portfolio Trust, and Western Asset Funds, Inc., registered under the Act as open-end management investment companies with one or more series, and Legg Mason Partners Fund Advisor, LLC (the “Adviser”), registered as an investment adviser under the Investment Advisers Act of 1940.
The application was filed on November 27, 2015, and amended on May 5, 2016.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on October 28, 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, c/o: Bryan Chegwidden, Esq., Rope & Gray LLP, 1211 Avenue of the Americas, New York, NY 10036, and Robert I. Frenkel, Legg Mason & Co., LLC, 100 First Stamford Place, Stamford, CT 06902.
Judy T. Lee, Senior Special Counsel, at (202) 551-6259 or Sara Crovitz, Assistant Chief Counsel, at (202) 551-6720 (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. Applicants request an order that would permit the applicants to participate in an interfund lending facility where each Fund could lend money directly to and borrow money directly from other Funds to cover unanticipated cash shortfalls, such as unanticipated redemptions or trade fails.
2. Applicants anticipate that the proposed facility would provide a borrowing Fund with a source of
3. Applicants agree that any order granting the requested relief will be subject to the terms and conditions stated in the Application. Among others, the Adviser, through a designated committee, would administer the facility as a disinterested fiduciary as part of its duties under the investment management and administrative agreements with the Funds and would receive no additional fee as compensation for its services in connection with the administration of the facility. The facility would be subject to oversight and certain approvals by the Funds' Board, including, among others, approval of the interest rate formula and of the method for allocating loans across Funds, as well as review of the process in place to evaluate the liquidity implications for the Funds. A Fund's aggregate outstanding interfund loans will not exceed 15% of its net assets, and the Fund's loan to any one Fund will not exceed 5% of the lending Fund's net assets.
4. Applicants assert that the facility does not raise the concerns underlying section 12(d)(1) of the Act given that the Funds are part of the same group of investment companies and there will be no duplicative costs or fees to the Funds.
5. Applicants also believe that the limited relief from section 18(f)(1) of the Act that is necessary to implement the facility (because the lending Funds are not banks) is appropriate in light of the conditions and safeguards described in the application and because the Funds would remain subject to the requirement of section 18(f)(1) that all borrowings of a Fund, including combined interfund loans and bank borrowings, have at least 300% asset coverage.
6. Section 6(c) of the Act permits the Commission to exempt any persons or transactions from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act. Rule 17d-1(b) under the Act provides that in passing upon an application filed under the rule, the Commission will consider whether the participation of the registered investment company in a joint enterprise, joint arrangement or profit sharing plan on the basis proposed is consistent with the provisions, policies and purposes of the Act and the extent to which such participation is on a basis different from or less advantageous than that of the other participants.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change by OCC would revise OCC's Schedule of Fees effective December 1, 2016, to implement an increase in clearing fees in accordance with OCC's Fee Policy.
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
The purpose of this proposed rule change is to revise OCC's Schedule of Fees in accordance with its Fee Policy to set OCC's fees at a level designed to cover OCC's operating expenses and maintain a Business Risk Buffer of 25%.
By way of background, OCC implemented its Capital Plan in 2015,
OCC recently reviewed its current Schedule of Fees
As a result of the aforementioned analysis, OCC proposes to revise its Schedule of Fees as set forth below.
In accordance with its Fee Policy, OCC will continue to monitor cleared contract volume and operating expenses in order to determine if further revisions to OCC's Schedule of Fees are required so that monies received from clearing fees cover OCC's operating expenses plus a Business Risk Buffer of 25%.
Section 17A(b)(3)(D) of the Securities Exchange Act of 1934, as amended (“Act”), requires that the rules of a clearing agency provide for the equitable allocation of reasonable dues, fees, and other charges among its participants.
Section 17A(b)(3)(I) of the Act
Written comments on the proposed rule change were not and are not intended to be solicited with respect to the proposed rule change and none have been received.
Pursuant to Section 19(b)(3)(A)(ii)
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.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order pursuant to: (a) Section 6(c) of the Investment Company Act of 1940 (“Act”) granting an exemption from sections 18(f) and 21(b) of the Act; (b) section 12(d)(1)(J) of the Act granting an exemption from section 12(d)(1) of the Act; (c) sections 6(c) and 17(b) of the Act granting an exemption from sections 17(a)(1), 17(a)(2) and 17(a)(3) of the Act; and (d) section 17(d) of the Act and rule 17d-1 under the Act to permit certain joint arrangements and transactions. Applicants request an order that would permit certain registered open-end management investment companies to participate in a joint lending and borrowing facility.
Legg Mason Global Asset Management Trust, Legg Mason Global Asset Management Variable Trust, Legg Mason Partners Income Trust, Legg Mason Partners Institutional Trust, Legg Mason Partners Money Market Trust, Legg Mason Partners Premium Money Market Trust, Legg Mason Partners Variable Income Trust, Master Portfolio Trust, and Western Asset Funds, Inc., registered under the Act as open-end management investment companies with one or more series, and Legg Mason Partners Fund Advisor, LLC (the “Adviser”), registered as an investment adviser under the Investment Advisers Act of 1940.
The application was filed on November 27, 2015, and amended on May 5, 2016.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request,
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants, c/o: Bryan Chegwidden, Esq., Rope & Gray LLP, 1211 Avenue of the Americas, New York, NY 10036, and Robert I. Frenkel, Legg Mason & Co., LLC, 100 First Stamford Place, Stamford, CT 06902.
Judy T. Lee, Senior Special Counsel, at (202) 551-6259 or Sara Crovitz, Assistant Chief Counsel, at (202) 551-6720 (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. Applicants request an order that would permit the applicants to participate in an interfund lending facility where each Fund could lend money directly to and borrow money directly from other Funds to cover unanticipated cash shortfalls, such as unanticipated redemptions or trade fails.
2. Applicants anticipate that the proposed facility would provide a borrowing Fund with a source of liquidity at a rate lower than the bank borrowing rate at times when the cash position of the Fund is insufficient to meet temporary cash requirements. In addition, Funds making short-term cash loans directly to other Funds would earn interest at a rate higher than they otherwise could obtain from investing their cash in repurchase agreements or certain other short term money market instruments. Thus, applicants assert that the facility would benefit both borrowing and lending Funds.
3. Applicants agree that any order granting the requested relief will be subject to the terms and conditions stated in the Application. Among others, the Adviser, through a designated committee, would administer the facility as a disinterested fiduciary as part of its duties under the investment management and administrative agreements with the Funds and would receive no additional fee as compensation for its services in connection with the administration of the facility. The facility would be subject to oversight and certain approvals by the Funds' Board, including, among others, approval of the interest rate formula and of the method for allocating loans across Funds, as well as review of the process in place to evaluate the liquidity implications for the Funds. A Fund's aggregate outstanding interfund loans will not exceed 15% of its net assets, and the Fund's loan to any one Fund will not exceed 5% of the lending Fund's net assets.
4. Applicants assert that the facility does not raise the concerns underlying section 12(d)(1) of the Act given that the Funds are part of the same group of investment companies and there will be no duplicative costs or fees to the Funds.
5. Applicants also believe that the limited relief from section 18(f)(1) of the Act that is necessary to implement the facility (because the lending Funds are not banks) is appropriate in light of the conditions and safeguards described in the application and because the Funds would remain subject to the requirement of section 18(f)(1) that all borrowings of a Fund, including combined interfund loans and bank borrowings, have at least 300% asset coverage.
6. Section 6(c) of the Act permits the Commission to exempt any persons or transactions from any provision of the Act if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act. Rule 17d-1(b) under the Act provides that in passing upon an application filed under the rule, the Commission will consider whether the participation of the registered investment company in a joint enterprise, joint arrangement or profit sharing plan on the basis proposed is consistent with the provisions, policies and purposes of the Act and the extent to which such
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
CHX proposes to amend the Rules of the Exchange (“CHX Rules”) to describe changes to CHX Matching System
The Exchange has designated this proposal as “non-controversial” and provided the Commission with the notice required by Rule 19b-4(f)(6)(iii) under the Act.
The text of this proposed rule change is available on the Exchange's Web site at (
In its filing with the Commission, the CHX included statements concerning the purpose of and basis for the proposed rule changes and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CHX has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
On August 25, 2014, NYSE Group, Inc., on behalf of the Exchange, Bats BZX Exchange, Inc. f/k/a BATS Z-Exchange, Inc., Bats BYX Exchange, Inc. f/k/a BATS Y-Exchange, Inc., Bats EDGA Exchange, Inc. f/k/a EDGA Exchange, Inc., Bats EDGX Exchange, Inc. f/k/a EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc. (“FINRA”), NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC, the Nasdaq Stock Market LLC, New York Stock Exchange LLC (“NYSE”), NYSE MKT LLC, and NYSE Arca, Inc. (collectively “Plan Participants”),
The Plan is designed to allow the Commission, market participants, and the public to study and assess the impact of increment conventions on the liquidity and trading of the common stocks of small-capitalization companies. Each Plan Participant is required to comply with, and to enforce compliance by its member organizations, as applicable, with the provisions of the Plan.
The Pilot will include stocks of companies with $3 billion or less in market capitalization, an average daily trading volume of one million shares or less, and a volume weighted average price of at least $2.00 for every trading day. The Pilot will consist of a control group of approximately 1400 Pilot Securities and three test groups (“Test Groups”) with 400 Pilot Securities in each selected by a stratified sampling.
The Plan requires the Exchange to establish, maintain, and enforce written policies and procedures that are reasonably designed to comply with applicable quoting and trading requirements specified in the Plan. Accordingly, the Exchange adopted Article 20, Rule 13(a) to require CHX Participants to comply with the quoting and trading provisions of the Plan.
Current Article 20, Rule 13(a)(2) provides that the Matching System will not display, quote or trade in violation of the applicable quoting and trading requirements for a Pilot Security specified in the Plan and Article 20, Rule 13, unless such quotation or transaction is specifically exempted under the Plan. The Exchange now proposes to adopt Article 20, Rule 13(c) (Operation of Certain Order Types and Modifiers for Pilot Securities) to describe specific changes to existing Matching System functionality necessary to implement the applicable quoting and trading requirements of the Plan or to clarify the operation of certain functionality in light of the Plan.
Initially, the Exchange proposes to amend current CHX Article 20, Rule 13(a)(2) to adopt an additional sentence that provides that “The operation of certain order types and modifiers applicable to the Pilot Securities are set forth under paragraph (c) below.”
The CHX Only modifier is a limit order modifier that instructs the Exchange to reprice the CHX Only order pursuant to the CHX Only Price Sliding Processes
Assuming no changes to the CHX Only modifier, the Trade-at Prohibition would result in CHX Only price slid orders in Test Group 3 securities to only be executable at the locking price pursuant to an exception or exemption to the Trade-at Prohibition. In order to avoid the order cancellations that could result from CHX Only price slid orders being ranked at the locking price, the Exchange now proposes to adopt proposed paragraph (c)(1) to adopt a modification to the current CHX Only Price Sliding processes for Test Group Three securities (“Trade-at price sliding”) which provides as follows:
In Test Group Three, an incoming CHX Only buy order priced at or through the current NBO shall be price slid to be executable and displayable at one minimum price variation below the current NBO and an incoming CHX Only sell order priced at or through the current NBB shall be price slid to be executable and displayable at one minimum price variation above the current NBB. Thereafter, in Test Group Three, a price slid CHX Only order shall continue to be price slid and executable at its displayed price pursuant to Article 1, Rule 2(b)(1)(C)(i)(b) or Rule 2(b)(1)(C)(ii)(b), as applicable.
The result of Trade-at price sliding is that the executable and displayable price of a CHX Only order that is price slid upon initial receipt and continually thereafter will always be the same.
The Exchange proposes the following amendments regarding the operation of cross orders in certain Pilot Securities.
Section VI(D)(2) of the Plan provides that trading centers will be permitted to execute Block Size
Section VI(B) of the Plan prohibits the Exchange from, among other things, accepting orders in any Pilot Security in Test Group One in price increments other than $0.05 (“$0.05 minimum order increment requirement”); provided that orders priced to execute at the midpoint and orders entered in a Plan Participant-operated retail liquidity program may be ranked and accepted in increments of less than $0.05. The $0.05 minimum order increment requirement and related exceptions also apply to Pilot Securities in Test Group Two and Test Group Three.
Following the adoption of Rule 612 of Regulation NMS,
In Test Group One, the Exchange shall accept cross orders in increments less than $0.05, subject to Article 20, Rule 4(a)(7)(B).
In connection with this proposed amendment, the Exchange is seeking exemptive relief from complying with the $0.05 minimum order increment requirement as currently set forth in the Plan, which does not contain this exception.
The Exchange proposes to clarify how it will handle certain ISOs received by the Exchange in Test Group Three securities. Specifically, in Test Group Three, the Exchange proposes to handle an ISO with a Time-In-Force of Day
(i) ” Trade-at Intermarket Sweep Order” means a limit order for a Pilot Security that meets the following requirements: (1) When routed to a Trading Center, the limit order is identified as a Trade-at Intermarket Sweep Order; and (2) Simultaneously with the routing of the limit order identified as a Trade-at Intermarket Sweep Order, one or more additional limit orders, as necessary, are routed to execute against the full size of any Protected Bid, in the case of a limit order to sell, or the full displayed size of any Protected Offer, in the case of a limit order to buy, for the Pilot Security with a price that is better than or equal to the limit price of the limit order identified as a Trade-at Intermarket Sweep Order. These additional routed orders also must be marked as Trade-at Intermarket Sweep Orders.
Thus, proposed paragraph (c)(3) provides that in Test Group Three, an Intermarket Sweep Order with a Time-In-Force of Day or GTD shall be treated as a Trade-at Intermarket Sweep Order. Moreover, as the Trade-at Prohibition does not apply to non-Test Group Three securities, proposed paragraph (c)(3) also provides that in non-Test Group Three securities, a Trade-at Intermarket Sweep Order shall be treated as an Intermarket Sweep Order.
Currently, the Exchange routes away Routable Orders
In light of the Trade-at Prohibition, the Exchange proposes to amend Article 19, Rule 3(a)(1) to provide that that the Exchange will route away orders to the extent necessary to permit the display and/or execution of an incoming Routable Order on the Exchange in compliance with Rules 610(d) and 611 and, for the duration of the pilot period to coincide with the pilot period for the Plan, the Trade-at Prohibition described under the Plan. The Exchange will continue to route orders pursuant to amended Routing Event #1 as IOC ISOs.
For example, assume that the NBBO for security XYZ, a Test Group Three security, is 20.00—20.05. Assume that the CHX has one undisplayed buy order for 100 shares of security XYZ priced at 20.00. Assume that two away markets are displaying protected bids for security XYZ at the NBB, each for 100 shares. Assume then that the Exchange receives a Routable Order to sell 300 shares of security XYZ at 20.00/share. Pursuant to amended Routing Event #1, the Exchange would route away two IOC ISOs, each for 100 shares of security XYZ priced at 20.00, to satisfy the full displayed size of the two protected bids at the NBB. The Exchange would then fully execute the remaining 100 shares of the incoming sell order against the resting undisplayed order at 20.00/share.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes that this proposal is consistent with the Act because it implements, interprets, and clarifies the provisions of the Plan and CHX Rules, and is designed to assist the Exchange and CHX Participants in meeting regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that the Pilot was an appropriate, data-driven test that was designed to evaluate the impact of a wider tick size on trading, liquidity, and the market quality of securities of smaller capitalization companies, and was therefore in furtherance of the purposes of the Act. To the extent that this proposal implements, interprets, and clarifies the Plan and applies specific requirements to CHX Participants, the Exchange believes that this proposal is in furtherance of the objectives of the Plan, as identified by the SEC, and is therefore consistent with the Act.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that the proposed rule change implements the provisions of the Plan, and is designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. The Exchange also notes that the quoting and trading requirements of the Plan will apply equally to all CHX Participants that trade Pilot Securities.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)
A proposed rule change filed under Rule 19b-4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because it will allow the Exchange to implement the proposed rules immediately thereby preventing delays in the implementation of the Plan. The Commission notes that the Plan is scheduled to start on October 3, 2016. Therefore, the Commission hereby waives the 30-day operative delay and designates the proposed rule change to be operative upon filing with the Commission.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 4, 2016, NASDAQ PHLX LLC (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act
Section 19(b)(2) of the Act
The Commission is extending this 45-day time period. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend FINRA Rule 6191 (Compliance with Regulation NMS Plan to Implement a Tick Size Pilot Program) to modify the quoting and trading requirements relating to the block size exception and the use of Intermarket Sweep Orders (“ISOs”) and Trade-at Intermarket Sweep Orders (“TAISOs”).
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On August 25, 2014, FINRA and several other self-regulatory organizations (“Participants”) filed with the Commission, pursuant to Section 11A of the Act
The Plan is designed to allow the Commission, market participants, and the public to study and assess the impact of increment conventions on the liquidity and trading of the common stock of small-capitalization companies. Each Participant is required to comply, and to enforce compliance by its member organizations, as applicable, with the provisions of the Plan. The Plan provides for the creation of a group of Pilot Securities, which shall be placed in a control group and three separate test groups, with each subject to varying quoting and trading increments. Pilot Securities in the control group will be quoted at the current tick size increment of $0.01 per share and will trade at the currently permitted increments. Pilot Securities in
Pilot Securities in the second test group (“Test Group Two”) will be quoted in $0.05 minimum increments and will trade at $0.05 minimum increments subject to a midpoint exception, a retail investor order exception, a negotiated trade exception, and an exception for certain executions to comply with FINRA Rule 5320.
FINRA is now proposing to amend Rule 6191(a) to make refinements to the operation of the Block Size and TAISO exceptions to the Trade-at requirement. With respect to the Block Size exception, FINRA is filing the proposed rule change to eliminate the condition that, to be eligible for the Block Size exception, the order may not be executed on multiple Trading Centers.
FINRA is proposing to amend Rule 6191(a)(6)(D)(ii)b. to clarify the operation of the Block Size exception to the Trade-at requirement. Specifically, FINRA is deleting current prong three of the Block Size exception, which provides that orders executed on multiple Trading Centers do not qualify for the Block Size exception. By deleting this requirement, the Block Size exception to the Trade-at requirement would apply to an order, irrespective of whether the member routes out a portion of the Block Size order to another Trading Center to comply with Rule 611.
As stated in FAQ # 170 in the Tick Size Pilot Program Trading and Quoting FAQs,
The Plan defines a “Trade-At Intermarket Sweep Order” as a limit order for a Pilot Security that, when routed to a Trading Center, is identified as an ISO, and simultaneous with the routing of the limit order identified as an ISO, one or more additional limit orders, as necessary, are routed to execute against the full displayed size of any protected bid, in the case of a limit order to sell, or the full displayed size of any protected offer, in the case of a limit order to buy, for the Pilot Security with a price that is equal to the limit price of the limit order identified as an ISO.
FINRA clarified the use of ISOs in connection with the Trade-at requirement by adopting a definition of “Trade-at Intermarket Sweep Order.”
Likewise, FINRA is proposing to amend Rule 6191(a)(6)(D)(i) to add the
FINRA has filed the proposed rule change for immediate effectiveness. FINRA has requested that the SEC waive the 30-day operative period so that the proposed rule change can become operative on October 3, 2016.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
The Plan requires FINRA to establish, maintain, and enforce written policies and procedures that are reasonably designed to comply with applicable quoting and trading requirements specified in the Plan. FINRA believes that this proposal is consistent with the Act because it is designed to assist FINRA in meeting its regulatory obligations pursuant to the Plan and is in furtherance of the objectives of the Plan.
FINRA believes that this proposal will clarify the permissible parameters around members' use of the Block Size exception by taking into account the possibility that a member may be required to route an ISO in compliance with Rule 611. Thus, FINRA believes that the proposed rule change better accommodates activity resulting from member compliance obligations under Rule 611, while remaining consistent with the Plan. FINRA also believes that the proposed changes to the operation of the TAISO exception to the Trade-at requirement is consistent with the Act in that it provides members with additional flexibility in using the TAISO exception while preserving the intended operation of the exception, consistent with the Plan.
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. FINRA notes that the proposed rule change implements the provisions of the Plan, and is designed to assist FINRA in meeting its regulatory obligations pursuant to the Plan. FINRA also notes that the quoting and trading requirements of the proposal will apply equally to all members that trade Pilot Securities.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
FINRA has filed the proposed rule change for immediate effectiveness. FINRA has requested that the SEC waive the 30-day operative period so that the proposed rule change can become operative on October 3, 2016.
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because it will allow FINRA to implement the proposed rules immediately thereby preventing delays in the implementation of the Plan. The Commission notes that the Plan is scheduled to start on October 3, 2016. Therefore, the Commission hereby waives the 30-day operative delay and designates the proposed rule change to be operative upon filing with the Commission.
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.
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), 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 November 7, 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 (SBA) regulations require that we determine that a participating Certified Development Company's Non-Bank Lender Institutions or Microlender's management, ownership, etc. is of “good character”. To do so requires the information requested on the Form 1081. This form also provides data used to determine the qualifications and capabilities of the lenders key personnel.
44 U.S.C. 35.
Arkansas Southern Railroad, L.L.C. (ARS), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to continue to lease and operate from The Kansas City Southern Railway Company (KCS) approximately 61 miles of rail lines in Arkansas and Oklahoma.
ARS states that it entered into lease agreements with KCS in 2005.
ARS certifies that its projected revenues as a result of the proposed transaction will not result in ARS's becoming a Class II or Class I rail carrier and that its annual revenues will not exceed $5 million.
ARS states that it intends to consummate the transaction on or shortly after October 21, 2016, the effective date of the exemption (30 days after the verified notice of exemption was filed).
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than October 14, 2016 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 36061, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on applicant's representative, Karl Morell, Karl Morell & Associates, Suite 225, 655 Fifteenth Street NW., Washington, DC 20005.
According to ARS, this action is categorically excluded from environmental review under 49 CFR 1105.6(c).
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Dakota, Minnesota & Eastern Railroad Corporation d/b/a Canadian Pacific (DM&E) has filed a verified notice of exemption under 49 CFR pt. 1152 subpart F—
DM&E has certified that: (1) No local freight traffic has moved over the Line for at least two years; (2) because the Line is not a through route, no overhead
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on November 10, 2016, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to DM&E's representative: W. Karl Hansen, Stinson Leonard Street LLP, 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402.
If the verified notice contains false or misleading information, the exemption is void ab initio.
DM&E has filed environmental and historic reports that address the effects, if any, of the abandonment on the environment and historic resources. OEA will issue an environmental assessment (EA) by October 14, 2016. Interested persons may obtain a copy of the EA by writing to OEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling OEA at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service at (800) 877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), CSXT shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by DM&E's filing of a notice of consummation by October 7, 2017, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Cedar Rapids and Iowa City Railway Company (CRANDIC), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to assume operations over a line of railroad known as the Hills Line extending from milepost 25.0 near Burlington Street in Iowa City, Iowa, to the end of the track at milepost 33.4 in Hills, Iowa, a distance of approximately 8.4 miles. CRANDIC states that it owns the Hills Line, which is currently leased to and operated by Iowa Interstate Railroad, Ltd. (IAIS).
CRANDIC notes that CRANDIC and IAIS have agreed that the lease of the Hills Line by IAIS will terminate on October 26, 2016, under the terms of the governing lease agreement and that, as of that date, IAIS will relinquish to CRANDIC (and CRANDIC alone will assume) the legal obligation to provide common carrier rail service over the Hills Line.
CRANDIC states that the proposed change in operator does not involve any provision or agreement that would limit future interchange with a third-party connecting carrier. CRANDIC certifies that its projected annual revenues as a result of this transaction will not result in CRANDIC's becoming a Class II or Class I rail carrier. However, because its projected annual revenues exceed $5 million, CRANDIC certifies that, pursuant to 49 CFR 1150.42(e), it provided notice on August 18, 2016, to employees on the Hills Line and on the national offices of the labor unions for those employees' unions. Additionally, under 49 CFR 1150.42(b), a change in operator requires that notice be given to shippers. CRANDIC certifies that it has provided notice of the proposed change in operator to shippers on the Hills Line.
The earliest this transaction can be consummated is October 23, 2016, the effective date of the exemption.
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than October 14, 2016 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 36057, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on Robert A. Wimbish, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 920, Chicago, IL 60606-2832.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Federal Highway Administration (FHWA), DOT.
Notice of limitation on claims for judicial review of actions by FHWA.
This notice announces actions taken by FHWA that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to a proposed highway project, Interstate 94 (I-94) East-West Corridor, 70th Street to 16th Street, in Milwaukee County, Wisconsin. Those actions grant approvals for the project.
By this notice, FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before March 6, 2017. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies.
Michael Davies, Division Administrator, FHWA Wisconsin Division Office, 525 Junction Road Suite 8000, Madison, Wisconsin 53717; telephone: (608) 829-7500; email:
Notice is hereby given that FHWA has taken final agency actions subject to 23 U.S.C. 139(l)(1) by issuing approval for the following highway project: Interstate 94 (I-94) East-West Corridor, 70th Street to 16th Street, in Milwaukee County, Wisconsin, Wisconsin DOT Project I.D. 1060-27-00. The purpose of the project is to address the deteriorated condition of I-94, obsolete roadway and bridge design, existing and future traffic demand, and high crash rates along approximately 3.5 miles of I-94. The project includes reconstructing and adding a through lane along I-94 in each direction along its existing alignment; reconstructing the 68th/70th Street interchange; reconstructing the Hawley Road interchange as a partial interchange; closure of the Mitchell Boulevard interchange; reconfiguring the system interchange at I-94/WIS 175/Miller Park Way (Stadium Interchange) as a hybrid between a service interchange and a system interchange (including a local road connection to Mitchell Boulevard and modifying the WIS 175 interchange ramps at Wisconsin Avenue); reconstructing the 35th Street and 27th Street interchanges; and local roadway improvements to offset impacts to local traffic from interchange modifications.
The actions taken by FHWA on this project, and laws under which such actions were taken, are described in the Final Environmental Impact Statement (FEIS), approved on January 29, 2016, in the Record of Decision (ROD) issued on September 9, 2016, and in other documents in the FHWA or WisDOT project records. The FEIS, ROD, and other project records are available by contacting FHWA or WisDOT at the addresses provided above. The FEIS and ROD can also be viewed on the project Web site:
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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23 U.S.C. 139(l)(1).
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized
Submit comments on or before November 7, 2016.
Comments should refer to docket number MARAD-2016-0095. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel
The complete application is given in DOT docket MARAD-2016-0095 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before November 7, 2016.
Comments should refer to docket number MARAD-2016-0096. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel
The complete application is given in DOT docket MARAD-2016-0096 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before November 7, 2016.
Comments should refer to docket number MARAD-2016-0094. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel
The complete application is given in DOT docket MARAD-2016-0094 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice and request for comments .
The National Highway Traffic Safety Administration (NHTSA), in coordination with the Governors Highway Safety Association (GHSA), the Federal Highway Administration (FHWA), and the Federal Motor Carrier Safety Administration (FMCSA), is in the process of reviewing the Guidelines for the Model Minimum Uniform Crash Criteria (MMUCC) Fourth Edition, December 2012, and requests comments to determine appropriate improvements to address stakeholder concerns. The MMUCC provides States with a dataset for describing crashes of motor vehicles in transport that generates the information necessary to improve highway safety within each State and nationally. NHTSA and GHSA established an expert panel to review the proposed changes and comments received from
Comments must be received on or before October 28, 2016.
You may submit comments identified by DOT Docket ID number NHTSA-2016-0089 or by any of the following methods:
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Regardless of how you submit your comments, you should identify the Docket number of this notice. Note that all comments received in response to this notice at
For programmatic issues: John Siegler, Office of Traffic Records and Analysis, NSA-221, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone (202) 366-1268.
The Model Minimum Uniform Crash Criteria (MMUCC) provides data elements for describing crashes of motor vehicles in transport that generates the information necessary to improve highway safety within each State and nationally. Statewide motor vehicle traffic crash data systems provide the basic information necessary for effective highway and traffic safety efforts at any level of government—local, State, or Federal. State crash data are used to perform problem identification, establish goals and performance measures, allocate resources, determine the progress of specific programs, and support the development and evaluation of highway and vehicle safety countermeasures. The use of State crash data can be hindered by the lack of uniformity between and within States.
MMUCC represents a voluntary and collaborative effort to generate uniform crash data that are accurate, reliable, and credible for data-driven highway safety decisions within a State, between States, and at the national level. MMUCC was originally developed in response to requests by States interested in improving and standardizing their State crash data. Lack of uniform reporting made the sharing and comparison of State crash data difficult. Different elements and definitions resulted in incomplete data and misleading results. MMUCC recommends voluntary implementation of a “minimum set” of standardized data elements to promote comparability of data within the highway safety community. It serves as a foundation for State crash data systems. The next planned update of the MMUCC Guideline is scheduled for 2017.
Implementation of MMUCC is an ongoing and collaborative effort. Changes to MMUCC approved during the first panel meeting on July 27-28, 2016, included creating new subsections for crashes involving (a) fatalities, (b) large vehicles/hazardous materials, and (c) non motorists; and modifications to existing crash, vehicle and person data elements. This second request for information will provide additional input to the MMUCC expert panel on a number of stakeholders' proposals including the addition of a new data element for “Motor Vehicle Automation Equipped and Use.” These topics will be discussed during the second meeting on October 27-28, 2016, after which, NHTSA, in collaboration with GHSA, FHWA, and FMCSA, will review and finalize the MMUCC 5th edition for publication in 2017. Additional information about the MMUCC update can be found on the Governor's Highway Safety Association Web site
Notice and request for comments.
The Department of the Treasury, 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, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A). Currently the Bureau of the Fiscal Service within the Department of the Treasury is soliciting comments concerning the Special Bond of Indemnity to the United States of America.
Written comments should be received on or before December 6, 2016 to be assured of consideration.
Direct all written comments and requests for additional information to Bureau of the Fiscal Service, Bruce A. Sharp, 200 Third Street A4-A, Parkersburg, WV 26106-1328, or
Notice and request for comments.
The Department of the Treasury, 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, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A). Currently the Bureau of the Fiscal Service within the Department of the Treasury is soliciting comments concerning the Offering of U.S. Mortgage Guaranty Insurance Company Tax and Loss Bonds.
Written comments should be received on or before December 6, 2016 to be assured of consideration.
Direct all written comments and requests for additional information to Bureau of the Fiscal Service, Bruce A. Sharp, 200 Third Street A4-A, Parkersburg, WV 26106-1328, or
Notice and request for comments.
The Department of the Treasury, 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, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A). Currently the Bureau of the Fiscal Service within the Department of the Treasury is soliciting comments concerning the Special Bond of Indemnity to the United States of America.
Written comments should be received on or before December 6, 2016 to be assured of consideration.
Direct all written comments and requests for additional information to Bureau of the Fiscal Service, Bruce A. Sharp, 200 Third Street A4-A, Parkersburg, WV 26106-1328, or
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is updating the identifying information for one entity and one individual that was previously designated pursuant to the Foreign Narcotics Kingpin Designation Act (Kingpin Act) (21 U.S.C. Sections 1901-1908, 8 U.S.C. Section 1182).
The update to the list of Specially Designated Nationals and Blocked Persons (SDN List) of the individual and entity identified in this notice whose property and interests in property are blocked pursuant to the Kingpin Act, is effective on October 4, 2016.
Assistant Director, Sanctions Compliance & Evaluation, Office of Foreign Assets Control, U.S. Department of the Treasury, Washington, DC 20220, Tel: (202) 622-2490.
This document and additional information concerning OFAC are available on OFAC's Web site at
The Kingpin Act became law on December 3, 1999. The Kingpin Act provides a statutory framework for the imposition of sanctions against significant foreign narcotics traffickers and their organizations on a worldwide basis, with the objective of denying their businesses and agents access to the U.S. financial system and the benefits of trade and transactions involving U.S. companies and individuals.
The Kingpin Act blocks all property and interests in property, subject to U.S. jurisdiction, owned or controlled by significant foreign narcotics traffickers as identified by the President. In addition, the Kingpin Act provides that the Secretary of the Treasury, in consultation with the Attorney General, the Director of the Central Intelligence Agency, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, the Secretary of State, and the Secretary of Homeland Security, may designate and block the property and interests in property, subject to U.S. jurisdiction, of persons who are found to be: (1) Materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of a person designated pursuant to the Kingpin Act; (2) owned, controlled, or directed by, or acting for or on behalf of, a person designated pursuant to the Kingpin Act; or (3) playing a significant role in international narcotics trafficking.
On October 4, 2016, the Associate Director of the Office of Global Targeting updated the SDN List for the entity and individual listed below, whose property and interests in property are blocked pursuant to the Kingpin Act:
1. AVICAL S.A., Transversal 72 No. 16-11, Glorieta de Milan, Manizales, Caldas, Colombia; Carrera 18 No. 30-65, Manizales, Caldas, Colombia; Calle 161 No. 91A-53, Bogota, Cundinamarca, Colombia; Medellin, Antioquia, Colombia; Dosquebradas, Risaralda, Colombia; NIT # 810006566-9 (Colombia) [SDNTK].
AVICAL S.A., Transversal 72 No. 16-11, Glorieta de Milan, Manizales, Caldas, Colombia; Carrera 18 No. 30-65, Manizales, Caldas, Colombia; Calle 161 No. 91A-53, Bogota, Cundinamarca, Colombia; Medellin, Antioquia, Colombia; Dosquebradas, Risaralda, Colombia; 810006556-9 (Colombia) [SDNTK].
2. MURILLO SALAZAR, Claudia Julieta, Colombia; Mexico; DOB 29 Jul 1975; POB Manizales, Caldas, Colombia; nationality Colombia; Cedula No. 30335610 (Colombia); C.U.R.P. MUSC750729MNERU04 (Mexico) (individual) [SDNTK] (Linked To: AVICAL S.A.; Linked To: MUNSA INTERNATIONAL INVESMENTS S.A.).
MURILLO SALAZAR, Claudia Julieta, Colombia; Mexico; DOB 29 Jul 1975; POB Manizales, Caldas, Colombia; nationality Colombia; Cedula No. 30335610 (Colombia); C.U.R.P. MUSC750729MNERLL04 (Mexico) (individual) [SDNTK] (Linked To: AVICAL S.A.; Linked To: MUNSA INTERNATIONAL INVESMENTS S.A.).
Veterans Health Administration, Department of Veterans Affairs.
Notice; Activity: Comment request.
The Veterans Health Administration (VHA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before December 6, 2016.
Submit written comments on the collection of information through the Federal Docket Management System
Brian McCarthy at (202) 461-6345.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501—3521), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary,
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Veterans Health Administration (VHA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before December 6, 2016.
Submit written comments on the collection of information through the Federal Docket Management System (FDMS) at
Brian McCarthy at (202) 461-6345.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
1. Academic Verification, VA Form 10-0491.
2. Addendum to Application, VA Form 10-0491a.
3. Annual VA Employment Deferment Verification, VA Form 10-0491c.
4. Education Program Completion Notice Service Obligation Placement, VA Form 10-0491d.
5. Evaluation Recommendation Form, VA Form 10-0491e.
6. HPSP Agreement, VA Form 10-0491f.
7. HPSP/OMPSP Application, VA Form 10-0491g.
8. Notice of Approaching Graduation, VA Form 10-0491h.
9. Notice of Change and/or Annual Academic Status Report, VA Form 10-0491i.
10. Request for Deferment for Advanced Education, VA Form 10-0491j.
11. VA Scholarship Offer Response, VA Form 10-0491k.
12. VIOMPSP Agreement, VA Form 10-0491l.
By direction of the Secretary.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The Federal Aviation Administration proposes to modify the requirements primarily applicable to air carriers conducting domestic, flag and supplemental operations to enhance the professional development of pilots in those operations. The proposal would require air carriers conducting domestic, flag and supplemental operations to provide new-hire pilots with an opportunity to observe flight operations (operations familiarization) to become familiar with procedures before serving as a flightcrew member in operations; revise the upgrade curriculum; provide leadership and command and mentoring training for all pilots in command (PICs); and establish Pilot Professional Development Committees (PPDC). This proposal is responsive to a statutory requirement for the Federal Aviation Administration to convene an aviation rulemaking committee (ARC) to develop procedures for air carriers pertaining to pilot mentoring, professional development, and leadership and command training and to issue an NPRM and final rule based on these recommendations. The proposal also includes a number of additional conforming changes related to flight simulation training devices and second in command (SIC) pilot training and checking, and other miscellaneous changes. The FAA believes that this proposed rule would mitigate incidents of unprofessional pilot behavior which would reduce pilot errors that can lead to a catastrophic event.
Send comments on or before January 5, 2017.
Send comments identified by docket number FAA-2014-0504 using any of the following methods:
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For technical questions concerning this action, contact Sheri Pippin, Air Transportation Division (AFS-200), Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8166; email:
The Federal Aviation Administration's (FAA) authority to issue rules on 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 FAA's authority.
This rulemaking is promulgated under the general authority described in 49 U.S.C. 106(f) and 44701(a) and the specific authority found in section 206 of Public Law 111-216, the Airline Safety and Federal Aviation Administration Extension Act of 2010 (Aug. 1, 2010) (49 U.S.C. 44701 note), which directed the FAA to convene an ARC and conduct a rulemaking proceeding based on the ARC's recommendations pertaining to mentoring, professional development, and leadership and command training for pilots serving in part 121 operations. Section 206 further required that the FAA include in leadership and command training instruction on compliance with flightcrew member duties under 14 CFR 121.542 (sterile flight deck rule).
Although the overall safety and reliability of the National Airspace System (NAS) demonstrates that most pilots conduct operations with a high degree of professionalism, a problem still exists in the aviation industry with some pilots acting unprofessionally and not adhering to standard operating procedures, including the sterile flight deck rule. The National Transportation Safety Board (NTSB) has continued to cite inadequate leadership in the flight deck, pilots' unprofessional behavior, and pilots' failure to comply with the sterile flight deck rule as factors in multiple accidents and incidents including Pinnacle Airlines flight 3701 (October 14, 2004) and Colgan Air, Inc. flight 3407 (February 12, 2009).
The Colgan Air accident focused public and Congressional attention on multiple aspects of air carrier training requirements, including issues pertaining to pilot leadership and command and mentoring. The accident also raised questions about pilot adherence to the sterile flight deck rule.
The Airline Safety and Federal Aviation Administration Extension Act of 2010 (Public Law 111-216), was enacted following the Colgan Air accident. Section 206 of Public Law 111-216 directed the FAA to convene an ARC to develop procedures for each part 121 air carrier pertaining to mentoring, professional development, and leadership and command training for pilots serving in part 121 operations and to issue an NPRM and final rule based on the ARC recommendations. Accordingly, this rulemaking is promulgated under the general authority described in 49 U.S.C. 106(f) and 44701(a) and the specific authority found in section 206 of Public Law 111-216.
This rulemaking proposes to modify requirements for air carriers and pilots operating under part 121 to enhance the professional development of part 121 pilots. The proposed requirements would most affect air carrier training for pilots in command. The proposed requirements would also affect air carrier qualification for newly employed pilots. Additionally, this proposed rule would require air carriers to establish and maintain a pilot professional development committee to develop, administer, and oversee formal pilot mentoring programs. Table 1 provides additional detail regarding the proposed amendments.
The FAA believes the proposed rule would generate safety benefits and address both the statutory requirement for this rulemaking and the NTSB recommendations. Additionally, the proposed rule contains cost saving benefits to operators of $72 million over a 10-year period based on changes to ground training in this proposal that are possible due to changes already implemented in the Pilot Certification and Qualification Requirements for Air Carrier Operations final rule (the Pilot Certification rule) (78 FR 42324, July 15, 2013).
The FAA estimates that the proposed rule would result in costs to operators of approximately $68 million over a 10-year period. When discounted using a 7 percent discount rate, the proposed rule would result in costs of $47 million over a 10-year period. In undiscounted terms, benefits in future years outweigh costs; however, when discounting benefits using the 7% discount rate, future benefits do not outweigh upfront costs.
The benefits and costs, by provision, of the proposed rule are seen in Table 2 below.
As recognized by the NTSB, the overall safety and reliability of the NAS demonstrates that most pilots conduct operations with a high degree of professionalism.
On October 14, 2004, a Pinnacle Airlines Bombardier CL-600-2B19, operating as Northwest Airlink flight 3701, crashed into a residential area about 2.5 miles from the Jefferson City Memorial Airport, Jefferson City, Missouri. During the flight, both engines flamed out after a pilot-induced aerodynamic stall and were unable to be restarted. Both pilots were killed and the airplane was destroyed.
The NTSB determined the probable causes of this accident were (1) the pilots' unprofessional behavior, deviation from standard operating procedures, and poor airmanship, which resulted in an in-flight emergency from which the pilots were unable to recover, in part because of their inadequate training; (2) the pilots' failure to prepare for an emergency landing in a timely manner; and (3) the pilots' improper management of the double engine failure checklist.
The NTSB noted that at the time of the accident, Pinnacle Airlines provided 2 hours of leadership training during SIC to PIC upgrade training with topics covering leadership authority, responsibility, and leadership styles. The NTSB also noted that after the accident and as a result of a high initial failure rate for pilots upgrading to PIC (22% failure rate in July 2004), Pinnacle revised the leadership training to 8 hours with modules on leadership, authority, and responsibility; briefing and debriefing scenarios; decision-making processes, including those during an emergency; dry run line-oriented flight training scenarios; and risk management and resource utilization. In October 2006, Pinnacle reported to the NTSB that the pass rate for pilots upgrading to PIC had improved to 92% first attempt and 95% overall.
On the evening of February 12, 2009, a Colgan Air, Inc., Bombardier DHC-8-400, operating as Continental Connection flight 3407, was on approach to Buffalo-Niagara International Airport, Buffalo, New York, when it crashed into a residence in Clarence Center, New York, about 5 nautical miles northeast of the airport. The 2 pilots, 2 flight attendants, all 45 passengers aboard the airplane, and 1 person on the ground were killed, and the airplane was destroyed by impact forces and a post-crash fire. The NTSB determined that the probable cause of this accident was the PIC's inappropriate response to the stall warning which eventually led to a stall from which the airplane did not recover. Contributing to the accident were (1) the pilots' failure to monitor airspeed; (2) the pilots' failure to adhere to sterile flight deck procedures; (3) the PIC's failure to effectively manage the flight; and (4) Colgan Air's inadequate procedures for airspeed selection and management during approaches in icing conditions.
The NTSB noted that at the time of the accident, although the Colgan Air crew resource management (CRM) training was consistent with Advisory Circular (AC) 120-51E, Crew Resource Management Training, it only included 5 slides that addressed command, leadership, and leadership styles. The NTSB also noted that the Colgan Air SIC to PIC upgrade training included a one day course on leadership; however, the training focused on the administrative duties associated with becoming a PIC and did not contain significant content applicable to developing leadership skills, management oversight, and command authority. The NTSB concluded that specific leadership training for pilots upgrading to PIC would help standardize and reinforce the critical command authority skills needed by a PIC during air carrier operations.
The Colgan Air accident focused public and Congressional attention on multiple aspects of air carrier training requirements, including (1) whether air carriers were providing PICs with the appropriate training to successfully execute the required PIC responsibilities while exhibiting effective leadership to promote professionalism and adherence to standard operating procedures, (2) whether pilots have access to individuals, such as more experienced pilots, who could serve as mentors, and (3) pilot adherence to the sterile flight deck rule.
The Airline Safety and Federal Aviation Administration Extension Act of 2010 (Public Law 111-216), enacted August 1, 2010, included a number of requirements to convene advisory groups and conduct rulemakings related to the results of the NTSB investigation of the Colgan Air accident. Section 206 directed the FAA to convene an ARC to develop procedures for each part 121 air carrier pertaining to mentoring, professional development, and leadership and command training for pilots serving in part 121 operations and to issue a NPRM and final rule based on the ARC recommendations.
In accordance with sections 204, 206, and 209 of Public Law 111-216, the FAA chartered the Air Carrier Safety and Pilot Training (ACSPT) ARC, the Flight Crewmember Mentoring, Leadership, and Professional Development (MLP) ARC and the Flightcrew Member Training Hours Requirement Review (THRR) ARC, respectively, in September 2010. The MLP ARC completed its work and provided recommendations in November 2010. At the same time as the MLP ARC worked to develop its recommendations, a number of related rulemakings required by Public Law 111-216 were already underway, including the Pilot Certification and Qualification Requirements for Air Carrier Operations rulemaking
This proposal is the culmination of the FAA's analysis of (1) the rulemaking requirements of section 206 of Public Law 111-216; (2) the recommendations provided by the MLP ARC, the THRR ARC, and the ACSPT ARC; (3) the part 121 pilot qualification and experience requirements provided in the Pilot Certification rule; (4) the Qualification, Service, and Use of Crewmembers and Aircraft Dispatchers final rule (78 FR 67800, November 12, 2013),
This proposed rule addresses the following NTSB recommendations from Aircraft Accident Report NTSB/AAR-07/01 and Aircraft Accident Report NTSB/AAR-10/01 for air carriers operating under part 121:
• A-07-6: Require regional air carriers operating under 14 CFR part 121 to provide specific guidance on expectations for professional conduct to pilots who operate nonrevenue flights.
• A-10-13: Issue an advisory circular with guidance on leadership training for upgrading captains at 14 CFR part 121, 135, and 91K operators, including methods and techniques for effective leadership; professional standards of conduct; strategies for briefing and debriefing; reinforcement and correction skills; and other knowledge, skills, and abilities that are critical for air carrier operations.
• A-10-14: Require all 14 CFR part 121, 135, and 91K operators to provide a specific course on leadership training to their upgrading captains that is consistent with the advisory circular requested in Safety Recommendation A-10-13.
• A-10-15: Develop and distribute to all pilots, multimedia guidance materials on professionalism in aircraft operations that contain standards of performance for professionalism; best practices for sterile cockpit adherence; techniques for assessing and correcting pilot deviations; examples and scenarios; and a detailed review of accidents involving breakdowns in sterile cockpit and other procedures, including the Colgan Air, Inc. flight 3407 accident. Obtain the input of operators and air carrier and general aviation pilot groups in the development and distribution of these guidance materials.
Paragraph (a)(1) of section 206 of Public Law 111-216 directed the FAA to convene an ARC to develop procedures for each part 121 air carrier to take the following actions:
(A) Establish flight crewmember mentoring programs under which the air carrier will pair highly experienced flight crewmembers who will serve as mentor pilots and be paired with newly employed flight crewmembers. Mentor pilots should be provided, at a minimum, specific instruction on techniques for instilling and reinforcing the highest standards of technical performance, airmanship, and professionalism in newly employed flight crewmembers.
(B) Establish flight crewmember professional development committees made up of air carrier management and labor union or professional association representatives to develop, administer, and oversee formal mentoring programs of the carrier to assist flight crewmembers to reach their maximum potential as safe, seasoned, and proficient flight crewmembers.
(C) Establish or modify training programs to accommodate substantially different levels and types of flight experience by newly employed flight crewmembers.
(D) Establish or modify training programs for second-in-command flight crewmembers attempting to qualify as pilot-in-command flight crewmembers for the first time in a specific aircraft type and ensure that such programs include leadership and command training.
(E) Ensure that recurrent training for pilots in command includes leadership and command training.
(F) Such other actions as the aviation rulemaking committee determines appropriate to enhance flight crewmember professional development.
Accordingly, as directed by section 206, the FAA convened the MLP ARC to address procedures in these areas.
Section 206 of Public Law 111-216 also requires the FAA to issue an NPRM and final rule based on the ARC recommendations. It further specifies that leadership and command training must include instruction on compliance with flightcrew member duties under § 121.542, the sterile flight deck rule.
Finally, section 206 of Public Law 111-216 requires the FAA to establish a streamlined review process for part 121 air carriers that had, in effect on August 1, 2010, the programs described above. Under the streamlined review process, the FAA must expedite approval of programs that it determines meet the requirements in the final rule.
In addition to the requirements in section 206, Public Law 111-216 also contains a number of related requirements for rulemaking, which have resulted in the following rulemaking initiatives: Pilot Certification and Qualification Requirements for Air Carrier Operations (secs. 216 and 217); Qualification, Service, and Use of Crewmembers and Aircraft Dispatchers (secs. 208 and 209); Safety Management Systems for Domestic, Flag, and Supplemental Operations Certificate Holders (sec. 215); and Pilot Records Database (sec. 203). The FAA also determined that amendments to FSTD qualification and evaluation standards in part 60 were necessary to support the provisions in the Qualification, Service, and Use of Crewmembers and Aircraft Dispatchers final rule and initiated a rulemaking to address this issue.
In 2013, the FAA issued the Pilot Certification and Qualification Requirements for Air Carrier Operations final rule and the Qualification, Service, and Use of Crewmembers and Aircraft Dispatchers final rule. In 2015, the FAA issued the Safety Management Systems for Domestic, Flag, and Supplemental Operations Certificate Holders final rule (80 FR 1308, January 8, 2015).
The Pilot Certification rule includes a number of changes that increase the knowledge, qualification, and experience of pilots serving in part 121 operations. Notably, the Pilot Certification rule requires all pilots serving in part 121 operations to hold an airline transport pilot (ATP) certificate with a type rating and requires pilots to complete a minimum of 1,000 hours of relevant operational experience prior to serving as a PIC in part 121 operations. Additionally, the Pilot Certification rule requires pilots, who will serve in part 121 operations, to complete the ATP-CTP prior to ATP certification.
Public Law 111-216 also required the FAA to establish a task force and multidisciplinary expert panels, in addition to the MLP ARC, to further examine existing training program requirements and develop recommendations for improvements. Therefore, the FAA established the following ARCs:
• Stick Pusher and Adverse Weather Event Training ARC (sec. 208 of Pub. L. 111-216) to study and submit to the Administrator a report on methods to increase the familiarity and improve the response of flightcrew members on stick pusher systems, icing conditions, and microburst and windshear weather events.
• Flightcrew Member Training Hours Requirement Review ARC (THRR ARC) (sec. 209 of Pub. L. 111-216) to assess and make recommendations to the Administrator on the best methods and optimal time needed for flightcrew member training in part 121 and 135 air carrier operations; the best methods for flightcrew member evaluation; best methods to allow specific academic training courses to be credited toward the total flight hours required to receive an Airline Transport Pilot certificate; and crew leadership training.
• Air Carrier Safety and Pilot Training ARC (ACSPT ARC) (sec. 204 of Pub. L. 111-216) to evaluate best practices in the air carrier industry and provide recommendations on air carrier management responsibilities for flightcrew member education and support, flightcrew member professional standards, flightcrew member training standards and performance, and mentoring and information sharing between air carriers.
To promote pilot professionalism and standardization, the FAA has taken a number of actions through rulemakings and guidance. The FAA first issued the sterile flight deck rule (§ 121.542) to prohibit the performance of nonessential duties by flightcrew members during critical phases of flight, including all ground operations involving taxi, take-off and landing and other flight operations conducted below 10,000 feet, except cruise flight (46 FR 5500, January 19, 1981). The FAA recently amended the sterile flight deck rule to prohibit flightcrew members from using a personal wireless communications device or laptop computer for personal use while at their duty station while the aircraft is being operated. This rule is intended to ensure that certain non-essential activities do not contribute to the challenge of task management on the flight deck or a loss of situational awareness due to attention to non-essential tasks. (Prohibition on Personal Use of Electronic Devices on the Flight Deck final rule, 79 FR 8257, February 12, 2014)
On February 27, 2003, the FAA issued Advisory Circular (AC) 120-71A, Standard Operating Procedures for Flight Deck Crewmembers. This AC stressed that safety in commercial operations depends on good crew performance founded on clear, comprehensive, and readily available standard operating procedures.
In response to NTSB Safety Recommendation A-06-7, the FAA issued Safety Alert for Operators (SAFO) 06004 on April 28, 2006, to emphasize the importance of sterile flight deck discipline and fatigue countermeasures, especially during approach and landing.
On July 3, 2007, the FAA issued Safety Alert for Operators (SAFO) 07006, to address procedural intentional non-compliance (PINC) because multiple accidents revealed pilots not adhering to established procedures and airplane limitations when conducting positioning flights.
On April 26, 2010, the FAA issued Information for Operators (InFO) 10003, to address flight deck distractions because recent incidents and accidents revealed pilots using laptop computers and mobile telephones for personal activities unrelated to the duties and responsibilities required for conduct of a safe flight. Accordingly, the FAA recommended to Directors of Safety and Directors of Operations that specific policies and training be provided to ensure that distractions in the flight deck are minimized.
To address the significance of human performance factors such as communication, decision-making, and leadership, the FAA issued the Air Carrier and Commercial Operator Training Programs final rule requiring crew resource management (CRM) training for flightcrew members and flight attendants and dispatcher resource management (DRM) training for aircraft dispatchers. (60 FR 65940 December 20, 1995)
The FAA recognizes the need to continue to review air carrier training and qualification regulations, policies, and guidance to ensure they are current and relevant and addresses new technology and research. Therefore, in January 2014, the FAA chartered the Air Carrier Training ARC to provide a forum for the U.S. aviation community to continue to discuss, prioritize, and provide recommendations to the FAA concerning air carrier training.
On September 15, 2010, the FAA established the MLP ARC as required by Public Law 111-216. The MLP ARC membership consisted of representatives from the Air Line Pilots Association (ALPA), Air Transport Association (ATA) (now known as Airlines for America), Coalition of Airline Pilots Associations (CAPA), National Air Carrier Association (NACA), National Association of Flight Instructors (NAFI), Regional Airline Association (RAA), and the University Aviation Association (UAA).
The Administrator tasked the MLP ARC with developing recommendations to submit to the FAA for rulemaking consideration. Specifically the MLP ARC considered and addressed the topics as required by section 206(a)(1) of Public Law 111-216 and as specified in the ARC charter. The MLP ARC presented its report and recommendations to the FAA on November 2, 2010 (“Report from the MLP ARC”).
NACA filed a dissenting report to the MLP ARC recommendations, asserting that the recommendations were too prescriptive and did not provide sufficient scalability for smaller airlines. A copy of the Report from the MLP ARC, including NACA's dissenting report, has been placed in the docket for this rulemaking.
Based on section 206(a)(1)(A) of Public Law 111-216, the FAA asked the MLP ARC to consider and address flightcrew member mentoring programs. In response to this tasking, the MLP ARC recommended the creation of two mentoring programs: Long-term career mentoring and flightcrew mentoring. The long-term career mentoring would be accomplished by a relationship between a protégé pilot and a highly experienced senior pilot. Flightcrew mentoring would be facilitated by the short-term relationship between every PIC and SIC protégé that occurs naturally with each crew pairing. The MLP ARC also recommended that career mentors be paired with protégé pilots at the following career milestones: (1) New-hire pilots during their first year following initial hire, (2) operational transitions, and (3) PICs during their first year following upgrade to PIC. Additionally, the MLP ARC recommended that flightcrew mentors submit a protégé report to the career mentor for every crew pairing with a new-hire pilot during the new-hire pilot's first year.
To support FAA analysis of the MLP ARC recommendations related to mentoring, the FAA Civil Aerospace Medical Institute (CAMI), Human Factors Research Laboratory, reviewed mentoring research literature to (1) assess the benefits of mentoring as it was related to improving pilot airmanship, aeronautical decision-making, and professionalism, (2) assess effectiveness of mentoring programs across a range of occupations, and (3) make recommendations regarding the development of mentoring programs, the selection and training of mentors, and the expected benefits to mentors and protégés. CAMI developed a report of the research review and recommendations in a document titled “Determining the Feasibility and Effectiveness of Aircraft Pilot Mentoring Programs May 2015” (Report from CAMI). The FAA notes that although the report identifies some limitations in the mentoring research, the report does provide several mentoring program recommendations based on the available literature. The FAA has provided a copy of this report in the docket for this rulemaking.
The FAA agrees with certain elements of the MLP ARC recommendations pertaining to flightcrew member mentoring programs and is proposing PIC mentoring training. However, the FAA does not agree with the MLP ARC recommendation for career mentors and the associated recommendation for PICs to submit a report to the career mentor after every crew pairing with a new-hire pilot. These recommendations do not allow for the many air carrier-specific factors that must be considered in the development, administration, and oversight of a formal pilot mentoring program. Further, the Report from CAMI identified factors such as air carrier culture, goals and objectives as important to the development of a mentoring program.
Based on section 206(a)(1)(B) of Public Law 111-216, the FAA tasked the MLP ARC to consider and address procedures to “Establish flight crewmember professional development committees made up of air carrier management and labor union or professional association representatives to develop, administer, and oversee formal mentoring programs of the carrier to assist flight crewmembers to reach their maximum potential as safe, seasoned, and proficient flight crewmembers.” In response to this tasking, the MLP ARC recommended the creation of a Professional Development Steering Committee (PDSC) at each air carrier to meet at least quarterly. The MLP ARC stated that “[h]aving in place positive programs that continually develop and cultivate professionalism will, in the ARC`s view, have a profound impact on safety, standardization, professional ethics, and integrity.” To this end, the MLP ARC further stated that “the 14 CFR should provide specific guidance on the responsibility of each air carrier's professional development programs” and outlined objectives for all stakeholders (
The MLP ARC recommended that the PDSC's responsibilities include areas such as professional development, pilot mentoring, and certain pilot training subjects. A number of additional areas of PDSC responsibility contemplated by the MLP ARC fall within the purview of air carrier management (
In connection with the tasking to consider flightcrew member professional development committees, the MLP ARC also recommended the creation of a full-time part 119 professional development position dedicated solely to the professional development program at the air carrier. Further the MLP ARC recommended that the individual who holds this position meet the following qualifications: (1) Hold an ATP certificate; (2) have at least 3 years of experience as a part 121 pilot; (3) hold a bachelor's degree; and, (4) be qualified through training, experience and expertise. The MLP ARC also recommended that the PDSC consist of leaders of flight operations management and pilot representatives, such as from the pilots' union, and focus on career
NACA dissented from the recommendation to require a part 119 management official to head the PDSC although it concurred that a professional development position is important. NACA explained that new and smaller airlines commonly employ personnel who fulfill multiple management responsibilities (
The FAA agrees with certain elements of the MLP ARC recommendations pertaining to the creation of a professional development steering committee to develop, administer and oversee a formal pilot mentoring program. Consistent with the MLP ARC recommendations, the FAA recognizes the importance of both management and pilot participation in a committee focused on pilot professional development. However, regarding management qualifications, the FAA's proposal balances the MLP ARC recommendations with NACA's dissent. The FAA proposes to require the management representative who serves on such a committee to have certain qualifications to capture relevant operational experience, but is not required to be a part 119 management official. This component of the FAA's proposal is addressed in further detail in the portion of the document titled “III. Discussion of the Proposal, I. Pilot Professional Development Committee (§ 121.17).”
Based on section 206(a)(1)(C) of Public Law 111-216, the FAA asked the MLP ARC to consider and address “Methods to establish or modify training programs to accommodate substantially different levels and types of experience.” The MLP ARC recommended amendments to the part 121 training content requirements for indoctrination training as the most appropriate means by which to address this tasking.
The MLP ARC recommended that indoctrination training address three broad subject areas: (1) An overview of air carrier management and the pilot union (as applicable); (2) flight operations; and, (3) professional development. The MLP ARC provided a summary of content for each of the three subject areas, noting some degree of overlap with current training content requirements in part 121. The MLP ARC further recommended that part 121 indoctrination training should allow the training to be tailored to each air carrier's equipment and operational environment.
NACA provided a dissenting view with respect to the MLP ARC's indoctrination training recommendations. NACA does not believe the MLP ARC recommendations fulfill the intent of the tasking because the MLP ARC recommended increasing indoctrination training to cover a wider range of topics but did not allow for training to be adjusted for specific pilot groups and assumed all pilot indoctrination training classes are conducted in a similar fashion.
The FAA agrees with the intent of the recommendations to strengthen pilot indoctrination training but has not included amendments to basic indoctrination training in this proposal. The FAA does not believe that the recommended approach to accommodate different levels and types of experience is necessary because of the recent changes to part 121 air carrier pilot certification requirements and the redundancy with other existing training requirements.
The Pilot Certification final rule, issued after the MLP ARC developed its recommendations, requires all pilots in part 121 operations to hold an ATP certificate and a type rating. Further, recognizing pilots come from various backgrounds, the rule requires ATP applicants to complete an ATP-CTP that addresses the potential knowledge gap between a commercial pilot certificate and an ATP certificate. This prerequisite eligibility requirement for an ATP certificate (the ATP-CTP) provides foundational knowledge in many subject areas, including air carrier operations, leadership and command, professional development and crew resource management (CRM). Thus, the Pilot Certification rule requirements raise the baseline knowledge and experience level for pilots prior to serving at an air carrier.
Additionally, as acknowledged by the MLP ARC, much of the content suggested for indoctrination training is currently required by part 121 (
The FAA also agrees with the MLP ARC recommendation that indoctrination training should be tailored to the air carrier's unique operational environment. Currently, § 121.415(a)(1)(iii)-(iv) requires indoctrination training to include contents of the air carrier's certificate and operations specifications, and appropriate portions of the air carrier's operating manual. Therefore, the FAA expects that individual air carrier's indoctrination training curriculum is already tailored to its environment in accordance with the existing regulatory requirement in § 121.415(a)(1).
Further, the MLP ARC recommended the inclusion of industry best practices in an Advisory Circular (AC) or a standard training template pertaining to indoctrination training. Since this proposal does not include amendments to basic indoctrination, the FAA has not developed an AC specific to basic indoctrination. However, on March 16, 2010, the FAA published InFO 10002 Industry Best Practices Reference List which provides a comprehensive list of resources available for use in the development of training curriculums.
The MLP ARC also recommended that the PDSC should develop special indoctrination training for all pilots when special events occur in the life of the air carrier, such as mergers or acquisitions, to ensure that all pilots operate from a standard operating procedure. The FAA does not agree with the recommendation to require the PDSC to develop special indoctrination training for special events because current regulations already require air carriers to provide training for special events. Section 121.415(g) requires air carrier training programs to include ground and flight training, instruction, and practice, as necessary to ensure pilots qualify in new equipment, facilities, procedures, and techniques. Thus, an air carrier involved in a merger or acquisition is already required to provide training, as necessary, to ensure all pilots are operating from a standard operating procedure.
Although the FAA has not included the MLP ARC recommendations for amendments to indoctrination training in this proposal, the FAA has proposed a requirement for operations familiarization. This component of the FAA's proposal is addressed in the portion of the document titled, “III. Discussion of the Proposal, B.
Based on section 206(a)(1)(D) of Public Law 111-216, the FAA asked the MLP ARC to consider and address enhancements to upgrade training to include leadership and command. In response to this tasking, the MLP ARC discovered there is wide variation among part 121 air carriers regarding leadership and command training for new PICs. The MLP ARC stated that current part 121 training requirements are “not written in such a manner to ensure that new captains will receive a comprehensive education on subjects which are foundational to command, leadership, and professionalism.”
The MLP ARC recommended that this leadership and command course be developed as a training event separate from the normal upgrade syllabus. Additionally, the MLP ARC recommended that the course consist of a minimum of 32 hours of in-person facilitated class discussion separated into two segments; the first segment to be completed prior to upgrade training and the second segment to be completed between 6 and 18 months after the completion of PIC operating experience.
NACA opposed the prescribed 32 hours of in-person, facilitated training. NACA did not oppose leadership and command training, but stated 32 hours of training for one topic was extreme and costly. NACA also stated that each air carrier should be allowed to develop a leadership and command course that best suits that air carrier's needs.
In addition to the MLP ARC, two other ARCs subsequently considered leadership and command training. The ACSPTARC determined that leadership and command courses varied among air carriers and recommended rulemaking and associated guidance to implement leadership and command training for new PICs. The THRR ARC also considered leadership training for all PICs, including the MLP ARC recommendations in this area. The THRR ARC stated that current upgrade training “does not necessarily provide education to the new PIC on his or her leadership role.” The THRR ARC also stated that “Crew Resource Management training, required for all air carriers, contains some elements of the desired leadership training, but is not designed to aid the PIC in assuming a leadership role in the aircraft and the air carrier as the training envisioned by this ARC would.”
Additionally, the THRR ARC concurred with the MLP ARC that a facilitated discussion was a key component of a leadership and command course. However, the THRR ARC stated that additional items in a leadership and command course may be suitable for distance learning.
The FAA agrees with the MLP ARC and THRR ARC recommendations to require leadership and command training for all SICs attempting to qualify as PIC for the first time in a specific aircraft type but does not agree with the recommendation that leadership and command training should be separate from the upgrade syllabus. Further, the FAA believes that the MLP ARC recommendations for a specific minimum number of training hours and in-person training are unnecessarily prescriptive. The FAA agrees with the THRR ARC and NACA positions pertaining to the necessity of flexibility in the development of leadership and command training. Accordingly, the FAA is proposing a comprehensive revision to the SIC to PIC upgrade training requirements to include leadership and command training in a performance based curriculum. The FAA's proposals regarding PIC leadership and command training and upgrade training are addressed in further detail in the portion of the document titled “III. Discussion of the Proposal, C. PIC Leadership and Command Training” and “III. Discussion of the Proposal, E. SIC to PIC Upgrade (§§ 121.420 and 121.426).”
Based on section 206(a)(1)(E) of Public Law 111-216, the FAA asked the MLP ARC to consider and address enhancements to recurrent training to include leadership and command. In response to this tasking, the MLP ARC determined that there is no current regulatory requirement for leadership and command training in recurrent training. The MLP ARC recommended that part 121 air carriers enhance recurrent training by integrating leadership and command components into the various forms of recurrent training (
The FAA agrees with the MLP ARC recommendation to include leadership and command in recurrent training and also agrees that the delivery of recurrent leadership and command training may be accomplished through a range of methods. However, the FAA does not agree with the MLP ARC recommendation regarding the frequency for recurrent leadership and command training. Since leadership and command skills are used regularly, during every flight, and therefore are less susceptible to degradation, the FAA does not believe it is necessary to require leadership and command training annually. Further, the FAA does not agree with the MLP ARC recommendation that the PDSC should determine the content of the training. Development of training curriculums is the responsibility of air carrier management. This component of the FAA's proposal is addressed in further detail in the portion of the document titled “III. Discussion of the Proposal, G. Recurrent Leadership and Command Training and Mentoring Training (§§ 121.409(b) and 121.427).”
Based on section 206(a)(1)(F) of Public Law 111-216, the FAA asked the MLP ARC to consider and address “Other actions that may enhance crewmember professional development.” The MLP ARC made
The MLP ARC stated “that in order to ensure that an ATP pilot applicant at any part 121 air carrier has a foundational knowledge of the concepts of professional development, leadership, and command; the PTS requirements for the Commercial, Flight Instructor, and ATP certificates should incorporate these elements into the written, practical, and/or oral portions of pilot certification.”
The FAA agrees with the intent of the recommendation to ensure ATP applicants at a part 121 air carrier have the foundational knowledge of professional development, leadership and command. However, the FAA does not agree with the recommended approach of amending the PTS because the FAA believes the Pilot Certification rule addressed this recommendation.
As previously discussed, the Pilot Certification rule, issued after the MLP ARC developed its recommendations, requires all pilots in part 121 operations to hold an ATP certificate and a type rating. Further, the Pilot Certification rule requires ATP applicants to complete an ATP-CTP that provides foundational knowledge in leadership and command, professional development, and CRM. Additionally, as stated in the Pilot Certification rule, the ATP-CTP course topics will be incorporated into the ATP knowledge test.
The MLP ARC recommended that pilots hired by part 121 air carriers be required to have a minimum of a bachelor`s degree or equivalent military flight training. NACA provided a dissenting view that many highly qualified and experienced applicants may be eliminated due to this requirement. NACA believes each carrier should be able to set its own hiring qualifications.
As indicated in the 2012 Pilot Source Study, there was no difference in the completion rate of a part 121 air carrier's training program between pilots with a bachelor's degree and pilots without a bachelor's degree.
The MLP ARC recommended that each air carrier`s PDSC develop a process or training program to ensure that all PICs are qualified in the principles of the entire leadership and command program. In addition, the MLP ARC recommended that each air carrier's PDSC develop a process or training program that ensures all pilots at an air carrier understand the entire professional development and mentoring programs.
The FAA agrees with the intent of the recommendation to ensure all PICs have completed the air carrier's training in leadership and command and is proposing a requirement for all current PICs to complete leadership and command training equivalent to the leadership and command training in the air carrier's upgrade ground training. However, the regulatory framework for part 121 training program designates the development of an approved pilot training curriculum as the exclusive responsibility of air carrier management, not a committee such as the PDSC. This component of the FAA's proposal is addressed in the portion of the document titled, “III. Discussion of the Proposal, F. Training for Pilots Currently Serving as PIC (§ 121.429).”
Finally, the FAA agrees with the intent of the recommendation to ensure all pilots at an air carrier understand the professional development and mentoring programs. However, the FAA believes this recommendation is the responsibility of each air carrier's Pilot Professional Development Committee (PPDC) in developing, administering, and overseeing a formal pilot mentoring program. Therefore, this proposal does not include a separate requirement to address this recommendation.
This proposal affects operators that train and qualify pilots in accordance with part 121 and therefore primarily affects certificate holders conducting part 121 operations. Certificate holders that conduct operations under part 121 may train and qualify pilots in accordance with the provisions of current subparts N and O or under an Advanced Qualification Program (AQP) in accordance with subpart Y of part 121. AQP allows for an alternative method for training and evaluating pilots based on instructional systems design, advanced simulation equipment, and comprehensive data analysis to continuously validate curriculums. Requirements of subparts N and O that are not specifically addressed in the certificate holder's AQP continue to apply to the certificate holder and to the individuals being trained and qualified by the certificate holder.
Additionally, the proposal affects some certificate holders conducting part 135 commuter operations.
For all of the proposals in this NPRM, the FAA is proposing an effective date of 60 days after publication of a final rule in the
In addition, although compliance with the revised upgrade curriculum requirements would not be required until 24 months after the effective date, the FAA proposes to provide flexibility by allowing those air carriers that choose to comply earlier to do so. The proposed revisions to §§ 121.419 and 121.424 would allow an air carrier to include in its approved training program either the existing upgrade curriculum or the revised upgrade curriculum until the compliance date.
Currently, a pilot newly employed by an air carrier may serve as a pilot in part 121 operations without first observing actual operations conducted by the air carrier. The MLP ARC, however, recommended that all pilots complete one or more observation flights before beginning service with a part 121 operator as one of a number of revisions to air carrier indoctrination training. The MLP ARC identified observation flights as providing a valuable introduction for new-hire pilots to an air carrier's operations and company procedures. The MLP ARC explained that, “[t]hese flights should be used as an integral part of the indoctrination training process helping to reinforce information learned during training and ease the transition to line operations.”
The FAA is aware that some air carriers already recognize the benefit of these flights and currently require operations familiarization flights for newly employed pilots. Additionally, the ACSPT ARC also identified observations flights as a best practice in use at several air carriers. The ACSPT ARC indicated that observation flights allow a new-hire pilot to be better prepared to serve in line operations because the pilot would have gained familiarity with typical line operations “without becoming task saturated in the control seat of a new, unfamiliar environment.”
The FAA agrees with the MLP ARC recommendation for observation flights and proposes to add a requirement for newly employed pilots to complete operations familiarization before beginning operating experience and serving as a pilot in part 121 operations for the air carrier.
In order to achieve the operations familiarization goals, the FAA believes that a minimum of two operating cycles are necessary to provide the newly employed pilot with sufficient exposure to an air carrier's operations and processes. During each flight, the newly employed pilot may observe different operational events, processes and briefings (
The FAA expects each pilot completing operations familiarization to remain on the flight deck and in the observer seat for takeoff and landing as well as during the en route portion of the flight. These pilots may, however, leave the flight deck to attend to physiological needs, and during long haul operations, for reasonable rest breaks.
Finally, the FAA recognizes that certain airplanes used in part 121 operations do not have an observer seat in the flight deck. Therefore, the proposed rule provides a process for an air carrier to request a deviation from the operations familiarization requirements to meet the learning objectives through another means.
Although the MLP ARC and the ACSPT ARC reported that some air carriers provided leadership and command training, the current part 121 training requirements do not specifically require air carrier training programs to include leadership and command instruction. The purpose of leadership and command training is to provide PICs with the leadership and command skills necessary to manage the crew (including flight attendants, if applicable), communications, workload, and decision-making in a manner that promotes professionalism and adherence to standard operating procedures. Accordingly, an air carrier's leadership and command training should include subjects such as leadership characteristics, types of leaders, leadership strategies, roles of a leader, leadership styles, command responsibility and authority, sound decisions and awareness.
Consistent with the MLP ARC recommendation to ensure all PICs are qualified in the principles of leadership and command, the FAA is proposing to require all PICs serving in part 121 operations to complete leadership and command training. Specifically, the FAA is proposing that this training be included during ground and flight training in the PIC upgrade curriculum (or the initial curriculum for the limited circumstance of a new-hire PIC), as well as the PIC recurrent curriculum. The FAA is also proposing that all pilots qualified to serve as PIC prior to the compliance date must complete the PIC upgrade ground training on leadership and command.
The FAA has drafted an AC containing guidelines for the development of leadership and command training and provided a copy of this document in the docket for this rulemaking. The FAA seeks comment on this draft AC.
Although the MLP ARC recommended facilitated in-person training for leadership and command, this proposal does not place restrictions on distance instruction as long as the leadership and command training objectives can be satisfied. The FAA believes that the MLP ARC and THRR ARC recommendations for a facilitated discussion during leadership and command training can be accomplished either in-person or with existing technology. Moreover, the proposal for leadership and command training is not
The FAA proposes to require training on mentoring skills for all PICs serving in part 121 operations to establish the mentoring environment recommended by the MLP ARC. The mentoring research literature indicates that mentor training is one of the most important and agreed upon elements for effective mentoring.
This training would be included in the PIC upgrade curriculum (or the initial curriculum for the limited circumstance of a new-hire PIC) and PIC recurrent ground training. The FAA has included mentoring skills in upgrade ground training because it complements the other related PIC “soft skills” (
The FAA has developed a draft AC that provides guidelines for developing and implementing mentoring training for PICs and provided a copy of this document in the docket for this rulemaking. The FAA seeks comment on this draft AC.
In addition, this proposal leverages the experience requirements required by the Pilot Certification rule for all PICs serving in part 121 operations. The Pilot Certification rule raised the experience requirements for all PICs serving in part 121 operations by requiring at least 1,000 hours of air carrier experience.
Currently, subpart N and appendix E of part 121 allow pilots who have previously qualified as SIC on an airplane type to complete upgrade training to qualify as PIC on that same airplane type.
The historic division of responsibilities between the PIC and SIC has advanced over time from a flight deck environment where the PIC typically served as the pilot flying and the SIC typically served exclusively as the pilot monitoring. As this progression occurred, throughout various rulemakings, the FAA has amended the training, qualification, and experience requirements of SICs to recognize this advancement in SIC responsibilities. In the current air carrier environment, both the PIC and SIC share pilot flying and pilot monitoring responsibilities. Thus, in the Pilot Certification rule the FAA determined that it was appropriate to require an SIC to train to the same level of airplane handling and proficiency as the PIC by obtaining an airplane type rating.
With the changes put in place by the Pilot Certification rule, all SICs serving in part 121 operations must now hold an ATP certificate and type rating for the airplane in which they serve. Additionally, a pilot must have a minimum of 1,000 hours of air carrier experience to serve as a PIC. This means that SICs will have already demonstrated technical mastery of the airplane at the ATP certificate level when they begin upgrade training. Therefore, the FAA is proposing revised upgrade training requirements to account for this evolution in SIC qualification and experience requirements. The following proposed upgrade training would ensure technical knowledge and skills while focusing on the decision-making and leadership skills required of a PIC serving in part 121 operations.
The FAA is proposing a performance-based upgrade curriculum. The proposal removes the requirement to include all existing upgrade ground training subjects required by § 121.419(a) and the § 121.424 requirement to include all appendix E maneuvers and procedures during upgrade flight training. Instead, the proposal refocuses upgrade ground and flight training to include subjects, maneuvers, and procedures specific to the duties and responsibilities the pilot will have as PIC at that air carrier. However, consistent with existing upgrade curriculum requirements, the proposed upgrade flight training continues to include rare, but high-risk scenarios. The FAA believes this approach would continue to allow air carriers to develop a robust upgrade curriculum specific to their operations and airplane types, and provides the opportunity for air carriers to more effectively target PIC-specific responsibilities and duties.
Consistent with existing upgrade curriculum requirements, the proposal does not specify a minimum number of training hours. However, because the FAA has removed the requirement to train the entire range of § 121.419 subjects and appendix E tasks in upgrade training, the FAA believes that the revised upgrade ground training can be completed in less time than the programmed hours currently identified in each air carrier's approved training program and the upgrade flight training can be completed within the same or less time than currently identified in each air carrier's approved training program.
The proposed upgrade ground and flight training must include seat dependent maneuvers and procedures as well as duty position maneuvers and procedures. Seat dependent maneuvers and procedures include the use of systems with controls that are not centrally located, or are accessible or operable from only the left or from only the right pilot seat as identified by the airplane manufacturer, air carrier, or the Administrator as seat dependent tasks. For example, in some airplane types, the tiller used to steer the airplane while taxiing on the ground is only accessible from the left seat. In these airplane types, upgrade training must include the maneuvers and procedures for taxiing from the seat in which the operator expects the PIC to serve.
Duty position maneuvers and procedures include tasks specified by the airplane manufacturer, air carrier, or the Administrator, as PIC or SIC only tasks. For example, some air carrier procedures specify that only the PIC may perform a circling approach. In this instance, upgrade training must include the maneuvers and procedures for circling approaches. Additionally, certain maneuvers and procedures require coordinated action between the PIC and SIC to accomplish the maneuver or procedure. For these maneuvers and procedures, the air carrier's standard operating procedures will specify who (SIC or PIC) performs each step of the maneuver or procedure. For example, during engine start, the PIC may perform the communication and coordination with the ramp personnel while the SIC physically turns the switch to engage the engine starter. In this instance, upgrade training must include engine start to train the pilot on the PIC required actions. The duty position procedures and maneuvers would vary by airplane type and air carrier. However, it is expected that all air carriers would have some duty position procedures, such as completion of weight and balance or variations of pre-flight, engine start, taxi and post-flight duties.
Under this proposal, upgrade ground training must include leadership and command, as well as CRM. CRM training includes decision making, authority and responsibility, and conflict resolution. The proposed upgrade flight training must include scenario-based training structured to incorporate CRM and leadership and command. The purpose of this scenario-based training is to provide the pilot with an opportunity to use these “soft skills” learned in ground training in a realistic flight environment.
Scenario-based training should address specific training objectives based on technical and soft skills. As such, the scenario-based training may consist of full or partial flight segments and would necessarily vary, depending on the training objectives. Examples of scenarios include, but are not limited to, mechanical malfunctions, passenger medical events, changing weather, or security concerns. An effective scenario would provide an opportunity for the PIC to identify available resources, obtain information from those resources, analyze that information, apply decision-making techniques, and communicate and coordinate with ATC, the aircraft dispatcher, and other crewmembers, as appropriate. The FAA believes this scenario-based training would ensure the effective integration of these “soft skills” with technical skills.
The proposed upgrade ground training must include mentoring, to include techniques for instilling and reinforcing the highest standards of technical performance, airmanship, and professionalism in newly employed pilots.
The proposed upgrade flight training must continue to include training in the rare, but high risk scenarios specified in § 121.423 as well as the carrier's approved low-altitude windshear flight training program.
The proposed upgrade curriculum also must include sufficient flight training to ensure the pilot has attained the knowledge and skills to proficiently operate the airplane as a PIC. Under the proposed upgrade curriculum, the air carrier must determine the specific maneuvers and procedures for each airplane type considering its operational factors and authorizations, risks identified through its safety management system (SMS), and other risks identified through programs such as an Aviation Safety Action Program (ASAP), Flight Operational Quality Assurance (FOQA), and Line Operations Safety Audit (LOSA).
Additionally, the training must ensure the pilot has developed the visual and psychomotor acuity necessary to operate the airplane from the seat position to be occupied while serving as PIC, typically the left pilot seat. For example, a carrier authorized to conduct circling approaches may determine that the circling approach maneuver is required during upgrade flight training due to the altered visual references available to the pilot from the left pilot seat.
To ensure a proficient PIC, the FAA proposes to revise the waiver provisions for a § 121.441 proficiency check completed after upgrade ground and flight training. Section 121.441 allows a person conducting a proficiency check to waive certain maneuvers if, among other requirements, the pilot has “within the preceding six calendar months, satisfactorily completed an approved training program for the particular type airplane.” This waiver authority is premised on the requirement for the pilot to demonstrate proficiency in all maneuvers and procedures specified in appendix E during flight training. Since the proposed upgrade training requirements do not require pilots to complete all maneuvers and procedures in appendix E during training, proficiency must still be demonstrated for all maneuvers and procedures in appendix F during the proficiency check completed after upgrade training. Accordingly, the waiver provisions in § 121.441 and
To serve as a pilot in part 121 operations, a pilot must satisfactorily complete recurrent ground and flight training within 12 calendar months preceding service as a pilot.
Under this proposal, an air carrier may continue to reset a pilot's base month for recurrent flight training if the pilot satisfactorily completes the proposed upgrade flight training and proficiency check. The proposed upgrade requirements continue to meet the recurrent flight training requirements of § 121.427. However, under this proposal, an air carrier may not reset a pilot's base month for recurrent ground training based upon a pilot's satisfactory completion of the proposed upgrade ground training because the proposed upgrade curriculum requirements do not include all the subjects required by § 121.427 for recurrent ground training.
As is the case today, a pilot's base month for recurrent ground training may only be changed upon completion of upgrade ground training if the air carrier's upgrade curriculum includes all recurrent ground training requirements of § 121.427.
As discussed previously, the MLP ARC recommended that air carriers qualify all PICs in the principles of leadership and command. The MLP ARC also recommended the creation of a mentoring environment by training all PICs on mentoring skills. Consistent with these MLP ARC recommendations, the FAA is proposing that all pilots qualified to serve as PIC prior to the compliance date must complete the PIC upgrade ground training on leadership and command and mentoring.
However, the FAA believes that it is unnecessarily burdensome for PICs to complete the one-time training on leadership and command and mentoring if the PIC has previously completed training that is duplicative of the proposed requirements in § 121.429. The MLP ARC and the ACSPT ARC reported that some air carriers have voluntarily provided leadership and command training to PICs.
Therefore, the FAA proposes to allow credit toward all or part of the requirements for leadership and command and mentoring training for current PICs based on leadership and command and mentoring training previously completed by these PICs at that air carrier. The FAA seeks comment on the proposal to allow credit for previously completed training at that air carrier, specifically:
(1) Whether and to what extent air carriers are already providing leadership and command training and/or mentoring training for current PICs as described in the draft ACs included in the docket for this rulemaking;
(2) Whether the previous training must have been provided as part of a training program approved by the FAA for that air carrier;
(3) Whether the previous training must have been completed within a certain period of time prior to the effective date of the final rule;
(4) What criteria and documentation should the FAA consider in determining whether all or part of the requirements have been met with previous training; and
(5) What criteria and documentation should the FAA consider in determining whether a PIC completed all or part of the previous training at that air carrier.
Consistent with the MLP ARC recommendation for enhancing recurrent training, the FAA proposes to require recurrent training on leadership and command for all PICs serving in part 121 operations. The FAA also proposes to require recurrent training on mentoring skills for all PICs serving in part 121 operations.
The purpose of recurrent training is to ensure that flightcrew members remain competent in the performance of their assigned duties. The FAA has previously recognized that the necessary frequency for recurrent training is not the same for all subject areas and tasks. For example, most flight training tasks are required at least every 12 months, however, extended envelope flight training tasks are only required every 24 or 36 months.
The MLP ARC recommended that recurrent training include selected items from leadership and command training every year with all components being included at least once during a 4-year cycle. However, the FAA does not believe that it is necessary to require leadership and command training to be completed on an annual basis. Rather, the FAA believes the appropriate frequency for recurrent leadership and command and mentoring training is at least once every 36 months because these skills are used regularly, during every flight, and therefore are less susceptible to degradation. Therefore, the FAA proposes to require recurrent ground training on leadership and command and mentoring for PICs every 36 calendar months.
Currently, air carriers may substitute LOFT that meets the requirements of § 121.409, for the recurrent proficiency check requirement specified in § 121.441. LOFT is flight training conducted in an FFS using real-time scenarios of complete flight segments that address normal, non-normal, or emergency procedures and provides training in CRM. The FAA proposes to modify the existing recurrent LOFT scenario requirements in § 121.409. Specifically, the FAA proposes that the LOFT scenario must provide each PIC an opportunity to demonstrate leadership and command. This proposed amendment to recurrent LOFT is consistent with the proposal for upgrade flight training to include scenario-based training that
The FAA's proposal to provide leadership and command training and mentoring training to PICs is consistent with the rulemaking requirements in Public Law 111-216. However, the FAA has long recognized that a pilot who serves as SIC in an operation that requires three or more pilots must be fully qualified to act as PIC of that operation (except for operating experience).
Based on the current requirement for the SIC serving in an augmented flightcrew to be fully qualified to act as PIC, the FAA is considering including the requirements for leadership and command training and mentoring training in the requirements for these SICs.
(1) Whether the PIC leadership and command training should be included in the qualification requirements for pilots serving as the SIC in an augmented flightcrew;
(2) Whether mentoring training should be included in the qualification requirements for pilots serving as the SIC in an augmented flightcrew;
(3) Whether providing training in only one of the new subject areas (
(4) Whether providing training in only one of the new subject areas (
Public Law 111-216 and the MLP ARC report suggest that air carriers can maximize the benefits of the existing pilot operating rules and pilot training and evaluation through formal pilot mentoring programs. Accordingly, the FAA proposes to add a requirement for certificate holders conducting operations under part 121 to establish and maintain a pilot professional development committee (PPDC) to develop, administer, and oversee a formal pilot mentoring program.
The FAA's proposal to require each certificate holder conducting part 121 operations to establish a PPDC is based on the premise that the PPDC must consider the attributes of the carrier itself in order to design a mentoring program. The mentoring research literature indicates one mentoring program approach will not necessarily fit all air carriers and it is important that the goals and objectives of the mentoring program are firmly tied to the air carrier's culture.
The FAA proposes to require the PPDC to meet frequently enough to accomplish the objectives of the committee. Although the MLP ARC recommended quarterly meetings, the FAA believes that the same factors would affect the frequency of meetings. For example, the PPDC at a small carrier with limited hiring and advancement may not need to meet as frequently as at a larger carrier in order to accomplish and sustain the same mentoring program objectives. However, the FAA expects that in order for the PPDC to be effective, the committee must meet at least once a year. The FAA further notes that an air carrier may take advantage of existing labor-management collaborative initiatives and incorporate the PPDC into an existing committee structure.
The proposal includes minimum staffing requirements for the PPDC. Specifically, the FAA proposes that the PPDC must consist of at least one management representative and at least one representative of the air carrier's pilots. The FAA believes that mentoring programs at each air carrier would realize the most benefit by including the perspective and participation of both the air carrier's management and its pilots.
The FAA used the term management representative to mean any person who has been designated to represent management's perspective on pilot mentoring. The FAA does not believe that it is necessary to require a part 119 management official to oversee the committee. Therefore, to account for the varying sizes and organizational structures of part 121 air carriers, the FAA proposal specifies qualification requirements for the management representative who serves on the committee instead of adding a requirement for a new part 119 management official to serve this purpose.
The proposal requires at least one management representative who serves on the carrier's PPDC to (1) have at least 1 year experience serving as a PIC in part 121 operations, and (2) be qualified through training, experience, and expertise relevant to the PPDC's responsibilities. The specific qualifications for the management representative are intended to capture relevant operational experience and do not include the MLP ARC recommendation for a bachelor's degree because a highly qualified and experienced person could be eliminated with this requirement.
The FAA has developed draft guidance pertaining to a PPDC and the development, administration, and oversight of a formal pilot mentoring program. The FAA seeks comment on this draft guidance which can be found in the docket for this rulemaking.
The FAA also seeks comments on whether a PPDC and a formal pilot mentoring program is necessary in light of the FAA's proposal to require all PICs
Currently, § 121.427 specifies the minimum content and training hours for pilot recurrent ground training. The minimum content requirements include instruction in the subjects required for initial ground training.
Prior to the Pilot Certification rule, § 121.419 contained pilot initial ground training requirements applicable to all pilots in part 121 operations. However, the Pilot Certification rule resulted in different initial ground training requirements for pilots who have completed the ATP-CTP.
The Pilot Certification rule created new prerequisite certification training (
In the Pilot Certification rule, the FAA recognized that a number of the general knowledge elements that are included in pilot initial ground training in § 121.419(a)(1) are now addressed by the ATP-CTP academic requirements. Therefore, in § 121.419(b), the Pilot Certification rule revised the part 121 initial ground training requirements by removing the generic elements for pilots who have completed the ATP-CTP.
When the FAA revised the initial ground training subjects, the FAA did not address the effects of this change on recurrent ground training. Since the required content of recurrent ground training is based, in part, on the content of initial ground training, the content of recurrent ground training may also be reduced for pilots who have completed the revised initial ground training requirements. For these pilots, the recurrent ground training requirement to include initial ground training is satisfied by including only those initial ground training subjects in § 121.419(b). Currently, recurrent training for pilots who have not completed the ATP-CTP must continue to include those initial ground training subjects in § 121.419(a). However, there is no basis for differentiating recurrent ground training requirements based on different initial ground training requirements.
In the time since the part 121 recurrent training requirements were established, the qualification, experience, and training requirements for all pilots in part 121 operations have significantly increased; the latest changes resulting from both the certification standards from the Pilot Certification rule and the additional knowledge and skill requirements required from the Qualification, Service, and Use of Crewmembers and Aircraft Dispatchers final rule. Further, air carrier training programs have also evolved in their maturity such that the general knowledge elements are no longer necessary to support the objectives of recurrent training.
Accordingly, the FAA proposes to remove from the recurrent ground training requirements, certain foundational knowledge elements that are no longer necessary in light of the maturity of air carrier training programs and the increase in pilot experience and qualification. This creates a single standard for recurrent ground training requirements.
Given the proposed reduction in recurrent ground training content, the FAA further proposes a reduction in required minimum programmed hours for pilot recurrent ground training. Although the FAA does not require a specific amount of minimum time for each particular subject, after comparing the subjects required during recurrent ground training prior to and after the Pilot Certification rule, the FAA believes that a one hour reduction in required minimum programmed hours for pilot recurrent ground training is appropriate. Accordingly, the FAA proposes to further amend § 121.427 by reducing by one hour the minimum programmed hours required annually for pilot recurrent ground training.
Notwithstanding this proposal, pilots must still complete recurrent extended envelope ground training and the associated programmed hours. Also, in addition to the annual minimum programmed hours, the FAA proposes that PICs must complete leadership and command and mentoring training every 36 months.
In addition to air carriers conducting part 121 operations, some additional operators use pilot training and qualification programs that comply with subparts N and O of part 121. Those operators include the following:
• Operators conducting commuter operations with airplanes in which the airplanes' type certificate requires two pilots are required by § 135.3(b) to comply with the training and qualification requirements in subparts N and O of part 121 instead of the requirements in subparts E, G, and H of part 135.
(1) Airplanes, other than turbojet-powered airplanes, having a maximum passenger-seat configuration of 9 seats or less, excluding each crewmember seat, and a maximum payload capacity of 7,500 pounds or less; or
(2) Rotorcraft.
• Operators conducting part 135 operations authorized to voluntarily comply with the training and qualification requirements in subparts N and O of part 121 instead of the requirements in subparts E, G, and H of part 135.
• Fractional ownership program managers conducting operations under subpart K of part 91, authorized to
Sections 135.3 and 91.1063, which allow, and in some cases require, operators to train and qualify pilots under part 121, raise the training requirements for these other operators and permits them to benefit from the more balanced mix of training and checking in part 121 (versus the testing and checking emphasis in part 135 and 91K).
First, for these other operators who either choose or are required to train and qualify pilots in accordance with part 121 requirements, the part 121 SIC certification requirements do not apply. SIC pilots serving in these operations are not required to hold an ATP certificate or type rating in the airplane in which they serve. However, this NPRM includes proposed revisions to the upgrade curriculum requirements in subpart N of part 121 based on the presupposition that the pilot entering the upgrade curriculum already holds an ATP certificate and type rating for the airplane. Since this presupposition is not applicable to pilots serving in part 135 and 91K operations, the FAA proposes to retain the existing upgrade curriculum requirements for part 135 operators and fractional ownership program managers who use a part 121 subparts N and O training and qualification program.
Second, unlike part 121 operating rules which require at least two pilots for all operations (§ 121.385(c)), certain operations under parts 135 and 91K may be conducted with only one pilot. The proposed leadership and command and mentoring enhancements to part 121 training programs were developed based on the assumption by the MLP ARC and the FAA that at least two pilots are serving on the flight deck during operations. Since this assumption is not applicable to all part 135 and 91K operations, for these other operators who choose to train and qualify pilots in accordance with part 121 requirements, the FAA proposes to limit the applicability of the leadership and command and mentoring training to pilots in command serving in operations that require two or more pilots.
The remaining proposed amendments to subparts N and O of part 121 would apply to these other operators. The FAA notes that the proposal for a PPDC would not apply to these other operators because this provision is proposed in subpart A of part 121.
The FAA also proposes to revise § 121.431(a)(1) to remove language that is redundant to § 135.3(b) and (c). The FAA believes § 135.3(b) and (c) adequately address the requirements for part 135 operators who choose, or are required, to train and qualify pilots under part 121.
In a 1996 final rule, Advanced Simulation Plan Revisions, the FAA replaced the terminology used in appendix H to part 121 to identify the varying capabilities of the different simulators at that time (61 FR 30726, June 17, 1996).
References to FSTDs in subparts N and O and appendices E and F have been updated to reflect current terminology. Specifically, references to visual simulators (Level A FFS) and advanced simulators (Level B, C and D FFS) have been updated to reflect current terminology and all references to simulation technology that no longer exists have been removed.
As a result of the terminology updates and the commonality in training maneuvers and procedures across qualification curriculum categories, the FAA is proposing revisions to appendices E and F to consolidate the columns identifying the FSTD or airplane required for the completion of each maneuver or procedure. There is only one substantive change to a required maneuver or procedure in appendices E and F. This change is described later in the preamble discussion pertaining to preflight visual inspection using pictorial means.
In § 121.439, the FAA proposes to update the references to visual simulators (Level A FFS) and advanced simulators (Level B, C and D FFS) to reflect current terminology. In addition, the FAA clarifies that a Level A FFS may not be used to satisfy the requirements of this section because a Level A FFS cannot be qualified under part 60 for takeoff and landing tasks. Accordingly, all requirements associated with completing takeoffs and landings in a Level A FFS have been removed from this section.
The FAA proposes to remove the experience requirements for use of a Level C FFS and to conform appendix H terminology with subparts N and O.
The current distinction in capabilities between a Level C and Level D FFS is negligible. The primary difference that exists today between a Level C and a Level D FFS is the evaluation of vibration and sound. Level D evaluation involves objective criteria while Level C evaluation of vibration and sound is subjective. Additionally, the FAA considered the increase in the baseline qualification and experience requirements for all pilots engaged in part 121 operations put into place by the Pilot Certification rule. Based on the current simulation technology and current part 121 pilot qualification and experience, the FAA has determined that the appendix H experience requirements for use of a Level C FFS are unnecessary.
The FAA further notes that removing the experience requirements for use of a Level C FFS is consistent with Exemption No. 5400 as amended over the last 22 years. In 1992, the FAA first issued Exemption No. 5400 to the member airlines of the Air Transport Association of America (now Airlines for America), and “other similarly situated Part 121 air carriers.” This exemption allows air carriers to conduct pilot training in a Level C FFS while providing an exemption from the pilot experience requirements in appendix H. At the time of this first exemption, the FAA recognized that more than a decade of experience with training and checking under appendix H had proven these experience requirements to be excessively conservative. This exemption has been extended multiple times without any adverse impact on safety and is still in place today.
However, the FAA notes that the experience requirements in § 61.64 for
The floating paragraph below § 121.409(b)(3) requires the Administrator or a check airman to “certify” satisfactory completion of a course of training conducted in a simulator. This provision was implemented at a time when simulator technology was new and unproven. As technology advanced, the FAA incrementally raised the standards for performance of simulators, while simultaneously increasing the allowance for training and checking in a simulator. As a result, the FAA believes that training conducted in FFS is effective and believes that the certification required by an instructor in accordance with existing § 121.401(c) is sufficient.
Certain maneuvers and procedures in appendix E to part 121 are limited to PIC training. Those maneuvers and procedures are as follows: Steep turns, zero-flap approaches and landings, landing and go around with the horizontal stabilizer out of trim, and maneuvering to a landing with a simulated powerplant failure. Additionally, depending on the air carrier's policies, circling approaches may also be limited to PIC training. However, in this NPRM, the FAA proposes to require that SIC training include these maneuvers in order to align appendix E with the training requirements in § 61.71(b). The Pilot Certification rule requires all SICs serving in part 121 operations to hold a type rating. To obtain a type rating within a part 121 training program, § 61.71(b)(1) requires the pilot to satisfactorily accomplish an approved training program and proficiency check for that airplane type that includes all the tasks and maneuvers required to serve as PIC in accordance with subparts N and O of part 121. Therefore, § 61.71(b)(1) already requires an SIC obtaining a type rating in a part 121 training program (
The FAA recognizes that there are limited instances in which a part 121 SIC obtains a type rating prior to employment at a part 121 air carrier.
Two maneuvers and procedures in appendix F to part 121 are limited to PIC proficiency checks: steep turns and a second missed approach. Additionally, depending on the air carrier's policies and airplane types, some maneuvers and procedures may be limited to PIC proficiency checks: taxiing, circling approaches, maneuvering to a landing with simulated powerplant failure, and two actual landings. However, as previously discussed, § 61.71(b)(1) requires an SIC obtaining a type rating within a part 121 training program to complete a proficiency check which includes all tasks and maneuvers required to serve as PIC. Therefore, the FAA has amended appendix F to indicate that these maneuvers and procedures are required for SICs completing a proficiency check to obtain a type rating.
As previously discussed, current § 61.71(b)(1) requires a pilot obtaining a type rating within a part 121 training program to satisfactorily accomplish an approved training program and proficiency check for that airplane type that includes all the tasks and maneuvers required to serve as PIC in accordance with the requirements of subparts N and O of part 121.
Currently, as required by § 121.424, PIC initial, transition and upgrade flight training includes the same tasks and maneuvers. However, this NPRM includes proposed revisions to the tasks and maneuvers required for upgrade flight training. Accordingly, without a clarification to § 61.71(b)(1), the proposed changes to the upgrade curriculum could result in confusion as to which tasks and maneuvers are required under § 61.71(b)(1) since the tasks and maneuvers required to serve as PIC would vary for initial, transition, and upgrade training. Therefore, the FAA is proposing a change to § 61.71(b)(1) to clarify that a pilot obtaining a type rating within a part 121 training program must satisfactorily accomplish the same tasks and maneuvers required by § 121.424 to serve as PIC.
The FAA proposes to align the subject area requirements for pilot transition ground training with the subject area requirements for initial ground training for pilots who have completed the ATP-CTP.
In order for a pilot to complete the transition curriculum requirements to qualify to serve on an airplane of a different type, a pilot must have previously qualified and served in the same duty position (
In recognition of the transitioning pilot's previous training in foundational knowledge elements combined with the recent increase in qualification and experience required to serve as a pilot in part 121 operations, and the evolution of air carrier training programs discussed earlier in this preamble, the FAA proposes to align the required transition ground training subjects with the required initial ground training subjects as revised by the Pilot Certification rule. As a result, the foundational knowledge elements removed from the initial ground training curriculum in the Pilot Certification rule would no longer be required for transition ground training.
Currently, the term “upgrade” applies to part 121 training to allow SICs who previously served on an airplane type to serve as PICs on the airplane type. Upgrade also applies to training to allow flight engineers who previously served on an airplane type to serve as SICs on the airplane type. The FAA has proposed to rename the training provided to flight engineers qualifying as SICs to distinguish this training from the SIC to PIC upgrade training. The proposed new term for flight engineer to SIC training is “conversion.”
Additionally, for flight engineers who have completed the ATP-CTP, the FAA proposes to align the subject areas for conversion ground training with the subject areas for initial ground training for those pilots who have completed the ATP-CTP. Prior to the Pilot Certification rule, the subject areas for pilot initial ground training and flight engineer upgrade ground training (now identified as conversion training) were the same. The Pilot Certification rule revised the subject areas for initial ground training for pilots who have completed the ATP-CTP. However, the Pilot Certification rule did not address the effect of the ATP-CTP on flight engineer upgrade ground training (now identified as conversion training). With the changes put in place by the Pilot Certification rule, flight engineers who complete conversion training must also hold an ATP certificate prior to serving as an SIC in part 121 operations. Therefore, for flight engineers who have completed the ATP-CTP, the FAA proposes that conversion ground training consist of the same subject areas as initial ground training for those pilots who have completed the ATP-CTP.
Part 121 appendix E requires initial, transition, and upgrade training to include the preflight visual inspection of the exterior and interior of the airplane, the location of each item to be inspected, and the purpose for inspecting it. Additionally, the proficiency check requirements in appendix F require the pilot to conduct an actual visual inspection of the exterior and interior of the airplane, locating each item and explaining briefly the purpose for inspecting it.
In 1985, the FAA first issued Exemption No. 4416 to the member airlines of the Air Transport Association of America (now Airlines for America), and any other qualifying part 121 certificate holder, to allow the preflight visual inspection to be trained and checked using pictorial means as long as certain conditions and limitations were met. There has been no adverse impact on safety as a result of this exemption. Accordingly, the FAA has extended Exemption No. 4416 multiple times and it is still in use today.
Instead of continuing to extend Exemption No. 4416, the FAA proposes to amend appendices E and F to allow pictorial means for the conduct of the preflight visual inspection. Consistent with the exemption, the pictorial means must be approved by the Administrator and must provide for the portrayal of normal and abnormal conditions of preflight inspection items. Additionally, if the pictorial means was used during the proficiency check, the pilot must demonstrate proficiency on at least one complete visual inspection of a static airplane before the completion of operating experience required by § 121.434. This means that the demonstration of proficiency may occur at any time between the satisfactory completion of the proficiency check and the completion of all required hours of operating experience. A check pilot must certify the pilot's proficiency on visual inspection before the pilot completes the operating experience required by § 121.434.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39), as amended, prohibits agencies from setting standards that create unnecessary
In conducting these analyses, the FAA has determined that this proposed rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is “significant” as defined in DOT's Regulatory Policies and Procedures; (4) would not have a significant economic impact on a substantial number of small entities; (5) would not create unnecessary obstacles to the foreign commerce of the United States; and (6) would not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.
The October 14, 2004 crash of Pinnacle Airlines flight 3701 in Jefferson City, Missouri and the February 12, 2009 crash of Colgan Air flight 3407 near Buffalo, New York are examples of past accidents where unprofessional pilot behavior contributed to the accident. These accidents provide a qualitative analysis of the expected benefits of the proposed rule because quantified benefits related to the accidents are attributed to earlier rules. However, these accidents exemplify the types of accidents that the proposed rule intends to prevent as issues addressed by this rule were present in these accidents; therefore the FAA believes further rulemaking is appropriate. The benefits of the training in the proposed rule include an increased level of safety from mitigation of unprofessional pilot behavior which would reduce pilot errors that can lead to a catastrophic event.
Moreover the proposed rule responds to the statutory requirement for a rulemaking in Public Law 111-216 and to unresolved NTSB recommendations.
Additionally, by reducing subjects in pilot recurrent ground training and upgrade training, the proposed rule would generate savings to operators of $72 million over a 10-year period. When discounted using a 7 percent discount rate, the proposed rule would result in savings of $46 million over the same period.
The estimated cost of the proposed rule to air carriers is $68 million over a 10-year period. When discounted using a 7 percent discount rate, the proposed rule is estimated to result in costs of $47 million over the same period. Detailed benefit and cost information follows below.
The proposed rule would apply to all part 121 air carriers (78) and, for some provisions, to part 135 operators conducting commuter operations in airplanes type certificated for two pilots (3).
The key elements used in framing the regulatory evaluation are as follows:
Other key assumptions used to complete the regulatory evaluation are as follows:
The benefits of the training in the proposed rule include an increased level of safety from mitigation of unprofessional pilot behavior which would reduce pilot errors that can lead to a catastrophic event. The October 14, 2004 crash of Pinnacle Airlines flight 3701 in Jefferson City, Missouri and the February 12, 2009 crash of Colgan Air flight 3407 near Buffalo, New York are examples of past accidents where unprofessional pilot behavior contributed to the accident. In addition the proposed rule responds to NTSB recommendations and satisfies the statutory requirement for a rulemaking in Public Law 111-216.
The FAA proposed rule also includes savings from reducing certain subjects in pilot recurrent ground training and upgrade training. Reducing these subjects would not impact safety because the recent Pilot Certification rule ensured technical proficiency in those subjects via other means. The savings from recurrent training apply to all part 121 air carriers and to carriers who operate within part 135 and are required to use pilot training and qualification programs that comply with part 121 subparts N and O. The savings from upgrade training applies only to part 121 air carriers. SICs within part 135 are not required to hold an ATP certificate or type rating and therefore must continue to meet current upgrade requirements. The estimated savings from the proposed rule are shown in Table 3 below.
This proposed rule would impose two types of compliance costs: (1) Start-up costs to develop training curriculums and train the current pilot work force prior to the compliance date and (2) recurring costs to conduct the training each year as the pilot work force evolves over time and to operate the PPDC.
The costs of the proposed rule are associated with the following proposed requirements of the rule:
• Operations familiarization for new-hire pilots;
• Revised ground and flight training for upgrading pilots which includes leadership and command and mentoring training;
• Leadership and command and mentoring ground training for current PICs;
• Leadership and command and mentoring recurrent training for PICs; and
• Pilot Professional Development Committees (PPDC).
These cost provisions apply to all part 121 air carriers and, with the exception of the PPDC, to carriers who operate under part 135 and are required to use pilot training and qualification programs that comply with part 121 subparts N and O.
The estimated compliance costs of the proposed rule, by provision, are shown in Table 4 below.
The FAA considered an alternative to the proposed rulemaking: a proposal representing the MLP ARC recommendations as presented to the FAA.
These recommendations, and their corresponding costs, are presented in Table 5 below and discussed in further detail in the Pilot Professional Development Regulatory Evaluation.
The cost of the MLP ARC recommendations is substantially greater than the cost of the proposed rule. The main drivers of the cost differences between the MLP ARC recommendations and the proposed rule are the full-time professional development position and the longer amount of time required for leadership and command training during upgrade training and during PIC recurrent training.
The FAA carefully considered the MLP ARC recommendations when developing the proposed rule and many of the recommendations are incorporated into the proposed rule albeit with less prescriptive requirements. Specifically, the MLP ARC recommended that the committee to oversee pilot professional development meet quarterly while the proposed rule does not specify how frequently the committee overseeing the formal pilot mentoring program should meet. Further the MLP ARC recommended a 32-hour program in leadership and command for upgrading pilots. The proposed rule requires leadership and command training for upgrading pilots but does not specify a minimum number of hours for that training. Relatedly the MLP ARC recommended that the leadership and command topics be included in recurrent training over a four-year cycle suggesting that the recurrent training would then need to be eight hours per year to cover the same material that is included in the upgrade training. The proposed rule also includes a requirement to include leadership and command training in recurrent training but does not specify a minimum number of hours for that training. The FAA does not have enough information to quantify the benefits related to incremental hours spent in leadership and command training or additional committee meetings and therefore leaves the requirements flexible so that each air carrier can make a determination based on its own circumstances.
Additional requirements recommended by the MLP ARC are not included in the proposed rule for a number of reasons. These reasons include redundancy with existing requirements, redundancy in light of regulatory changes put in place after the MLP ARC issued its recommendations, and identification of alternate (less costly) means to achieve desired benefit. A full discussion of the MLP ARC recommendations and dissenting views, and the FAA response can be found in the portion of this preamble titled “Background”.
The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
The Small Business Administration (SBA) categorizes airlines with 1,500 or fewer employees as small businesses. Of the 78 carriers that operate under part 121, 52 had fewer than 1,500 total employees based on National Vital Information Subsystem (NVIS) data from August 2014. Of the three part 135 operators required to use pilot training and qualification programs that comply with part 121 subparts N and O, all three have fewer than 1,500 total employees based on NVIS data. The count of pilots for the 52 small part 121 air carriers and the three small part 135 operators is shown in Table 6 below.
Based on these pilot counts, the analysis used to conduct the Pilot Professional Development Regulatory Evaluation was recalculated to analyze the cost to small carriers only. Total cost of the proposed rule on small carriers is shown in Table 7 below.
The total cost of the proposed rule on small carriers, and the corresponding per small carrier cost, by provision, is shown in Table 8 below.
The total cost per carrier of $118,000 for the proposed rule shown in Table 8 above, over the 10-year analysis period, implies an annual average per carrier cost of approximately $11,800. However, the highest cost to a small carrier occurs in 2016 (see Table 9) when the cost per carrier is approximately $41,000 because of the one-time cost to train all current PICs in leadership and command and mentoring.
The FAA believes that such an economic cost is not economically significant. BTS Form 41 Financial data is available for 31 small air carriers.
The FAA solicits comments regarding this determination.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $151.0 million in lieu of $100 million. This proposed rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.
This action contains the following proposed new information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has submitted these proposed information collection amendments to OMB for its review.
• Leadership and command and mentoring ground training for pilots currently serving as PIC (§ 121.429) and recurrent PIC leadership and command and mentoring training (§§ 121.409(b) and 121.427);
• Upgrade training curriculum requirements (§§ 121.420 and 121.426);
• Part 121 appendix H requirements; and
• Approval of Qualification Standards Document for certificate holders using an Advanced Qualification Program (AQP) (§ 121.909).
The proposed rule also requires some additional recordkeeping related to maintaining records of pilots completing the following:
• Leadership and command and mentoring ground training for pilots currently serving as PIC (§ 121.429);
• Recurrent PIC leadership and command and mentoring ground training (§ 121.427); and
• Operations familiarization for new-hire pilots (§ 121.432(d)).
The FAA anticipates that certificate holders would incur costs for the following groups of provisions:
• Operations familiarization for new-hire pilots (§ 121.432(d));
• Leadership and command and mentoring ground training for pilots currently serving as PIC (§ 121.429);
• Upgrade training curriculum requirements (§§ 121.420 and 121.426);
• Recurrent PIC leadership and command and mentoring ground training (§§ 121.409(b) and 121.427);
• Part 121, appendix H requirements; and
• Approval of Qualification Standards Document for certificate holders using an AQP (§ 121.909).
For the development and approval of new and revised training curriculums, the FAA estimated the paperwork costs for these provisions by multiplying the hourly rate of the person responsible by the number of estimated hours to develop and submit the new or revised training curriculum. (In all cases we assume that a ground instructor would develop and submit the new or revised training curriculum and that the ground instructor fully burdened wage is $44 per hour.
Proposed § 121.429 would require one-time development of a training course for leadership and command and mentoring for current PICs. This course must be submitted to the FAA for approval.
Proposed revisions to §§ 121.409(b) and 121.427 would require one-time
The FAA estimates a total of 40 hours of ground instructor time for development and submission of both the curriculum for current PICs and the revision to the recurrent PIC training curriculum.
Assuming 81 affected certificate holders, the FAA estimates that these proposed provisions would result in a one-time total cost of $142,560 for all affected certificate holders.
Proposed §§ 121.420 and 121.426 would require one time revision to the certificate holder's approved SIC to PIC upgrade training curriculum. This revised curriculum must be submitted to the FAA for approval.
The FAA estimates a total of 80 hours of ground instructor time for development and submission of the revised SIC to PIC upgrade training curriculum.
Assuming 81 affected certificate holders, the FAA estimates that these proposed provisions would result in a one-time cost of $285,120 for all affected certificate holders.
The proposed revision to part 121 appendix H would require one time revision to the certificate holder's approved training program to remove the pilot experience prerequisites for using a Level C FFS during training and checking. This revised training program must be submitted to the FAA for approval. The FAA expects that the program updates to reflect this change are minimal and are subsumed in the paperwork costs for the collective amendments made to the training provisions in this proposed rule.
The FAA estimates there are no costs for this proposed provision.
Although the proposed rule does not make any changes to § 121.909, when the new subparts N and O training requirements become effective, certificate holders that use AQP would have to review their training programs to make sure they address the new subparts N and O requirements. It is possible that certificate holders may make a one-time revision to their Qualifications Standards Document required by § 121.909 during this process to address the revised subparts N and O requirements.
This is a cost that only applies to certificate holders that use AQP for pilot training because they are the only ones who must meet the § 121.909 requirements. Therefore, this provision does not apply to certificate holders who only train their pilots under a training program in accordance with subparts N and O of part 121.
For each of the 25 certificate holders with an approved AQP, the FAA estimates 3 hours of ground instructor time for development and submission of the revised Qualification Standards Document.
The FAA estimates that this proposed provision would result in one-time costs of $3,300 across all certificate holders who train their pilots under AQP.
For the pilot training recordkeeping, the FAA estimated the paperwork costs for these provisions by first multiplying the number of required entries by the estimated number of pilots affected. Second, we multiplied the total number of entries by .001 hours (the time required to make each entry). Lastly, we multiplied the total time to make all entries by the hourly rate of the person responsible for making the entries. In all cases, the FAA assumes that the person making the entries is a clerical employee with an estimated fully-burdened wage of $26 per hour.
A record showing compliance with this requirement for current PICs would need to be retained in accordance with § 121.683(a)(1). This would be a one-time burden.
The FAA assumes that this cost would be incurred in the year prior to the compliance date of the rule and estimates that during that year 37,527 pilots would be affected and would require one record. The FAA estimates 38 hours of clerical time for entry of these records.
The FAA estimates that this proposed provision would add a one-time cost of $988 for all affected certificate holders.
A record showing compliance with this requirement for current PICs would need to be retained in accordance with § 121.683(a)(1). This would be an addition to the current recordkeeping burden approved under OMB Control Number 2120-0008.
PICs are required to complete the recurrent training every 3 years. Over the 10 year analysis period, the FAA estimates that there would be 96,328 instances of PICs undergoing recurrent training involving leadership and command and mentoring. Each instance would require one record. The FAA estimates 97 hours of clerical time for entry of these records.
The FAA estimates that this proposed provision would result in costs of $2,522 over the analysis period for all affected certificate holders.
Section 121.432(d) proposes a new qualification requirement for new-hire pilots to complete operations familiarization consisting of 2 operating cycles. A record showing compliance with this requirement for each new-hire pilot would need to be retained in accordance with § 121.683(a)(1). This would be an addition to the current recordkeeping burden approved under OMB Control Number 2120-0008.
The FAA estimates all affected certificate holders would have a total of 19,636 new-hire pilots over the analysis period. Each of the estimated 19,636 pilots affected would require one record. The FAA estimates 20 hours of clerical time for entry of these records. The FAA estimates that this proposed provision would result in costs of $520 across the analysis period for all affected certificate holders.
The total cost burden would be $435,010 ($379,076 discounted at 7 percent) over the 10-year analysis period.
The FAA is soliciting comments to—
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the FAA, including whether the information will have practical utility;
(2) Evaluate the accuracy of the FAA's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of collecting information on those who are to respond, including by using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Individuals and organizations may send comments on the information collection requirement to the address listed in the
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these proposed regulations.
FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6 and involves no extraordinary circumstances.
The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. The FAA has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.
The FAA analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The FAA has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.
Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The FAA also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public
Proprietary or Confidential Business Information: Commenters should not file proprietary or confidential business information in the docket. Such information must be sent or delivered directly to the person identified in the
Under 14 CFR 11.35(b), if the FAA is aware of proprietary information filed with a comment, the FAA does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7.
An electronic copy of rulemaking documents may be obtained from the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Web page at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.
Aircraft, Airmen, Aviation safety, Reporting and recordkeeping requirements.
Aircraft, Airmen, Aviation safety, Reporting and recordkeeping requirements.
Air carriers, Aircraft, Airmen, Aviation safety, Reporting and recordkeeping requirements, Safety, Transportation.
Aircraft, Airmen, Aviation safety, Reporting and recordkeeping requirements.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701-44703, 44707, 44709-44711, 44729, 44903, 45102-45103, 45301-45302.
(b) * * *
(1) Satisfactorily accomplished an approved training curriculum and a proficiency check for that airplane type that includes all the tasks and maneuvers required by §§ 121.424 and 121.441 of this chapter to serve as pilot in command in operations conducted under part 121 of this chapter; and
49 U.S.C. 106(f), 106(g), 1155, 40101, 40103, 40105, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, 47534, articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180), (126 Stat. 11).
The addition reads as follows:
(c) Additional limitations applicable to program managers authorized in accordance with paragraph (b) of this section, to comply with subparts N and O of part 121 of this chapter instead of §§ 91.1065 through 91.1107 of this part.
(1)
(ii) Each program manager must include in upgrade flight training for pilots, flight training for the maneuvers and procedures required in § 121.424(a), (c), (e) and (f) of this chapter; and, for pilots serving in crews of two or more pilots, beginning on [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], the flight training required in § 121.424(b) of this chapter.
(2)
(3)
49 U.S.C. 106(f), 106(g), 40103, 40113, 40119, 41706, 42301 preceding note added by Pub. L. 112-95, sec. 412, 126 Stat. 89, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44729, 44732; 46105; Pub. L. 111-216, 124 Stat. 2348 (49 U.S.C. 44701 note); Pub. L. 112-95, 126 Stat. 62 (49 U.S.C. 44732 note).
(a) Each certificate holder conducting operations under this part must establish and maintain a pilot professional development committee to develop, administer, and oversee a formal pilot mentoring program.
(b) The pilot professional development committee must consist of at least the following individuals:
(1) One certificate holder management representative who has completed at least one year of service as a pilot in command in part 121 operations and is qualified through training, experience, and expertise.
(2) One representative of the pilots employed by the certificate holder.
(c) The pilot professional development committee must hold its first meeting no later than [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE]. Thereafter, the pilot professional development committee must meet on a regular basis. The committee must meet with sufficient frequency to accomplish its objectives but not less than once every 12 calendar months.
The revisions and addition read as follows:
(a) This subpart prescribes the requirements applicable to each certificate holder for establishing and maintaining a training program for crewmembers, aircraft dispatchers, and other operations personnel, and for the approval and use of flight simulation training devices and training equipment in the conduct of the program.
(c) * * *
(3) Upgrade training. The training required for flightcrew members who have qualified and served as second in command on a particular airplane type, before they serve as pilot in command on that airplane.
(4) Conversion training. The training required for flightcrew members who have qualified and served as flight engineer on a particular airplane type, before they serve as second in command on that airplane.
(a) * * *
(4) Provide enough flight instructors and approved check airmen to conduct required flight training and checks required under this part.
The addition reads as follows:
(b) * * *
(2) * * *
(ii) * * *
(B) * * *
(
The revisions and addition read as follows:
(e)
(2) Before [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], upgrade training as specified in §§ 121.419 and 121.424 of this part for a particular type airplane may be included in the training program for flightcrew members who have qualified and served as second in command pilot on that airplane.
(f) Conversion training as specified in §§ 121.419 and 121.424 of this part for a particular type airplane may be included in the training program for flightcrew members who have qualified and served as flight engineer on that airplane.
(g) Particular subjects, maneuvers, procedures, or parts thereof specified in §§ 121.419, 121.420, 121.421, 121.422, 121.424, 121.425 and 121.426 of this part for transition, conversion or upgrade training, as applicable, may be omitted, or the programmed hours of ground instruction or inflight training may be reduced, as provided in § 121.405 of this part.
(h) In addition to initial, transition, conversion, upgrade, recurrent and differences training, each training program must also provide ground and flight training, instruction, and practice as necessary to insure that each crewmember and dispatcher—
(a) * * *
(2) Differences training for all variations of a particular type airplane may be included in initial, transition, conversion, upgrade, and recurrent training for the airplane.
(c) Approved related aircraft differences training. Approved related aircraft differences training for flightcrew members may be included in initial, transition, conversion, upgrade and recurrent training for the base aircraft. If the certificate holder's approved training program includes related aircraft differences training in accordance with paragraph (b) of this section, the training required by §§ 121.419, 121.420, 121.424, 121.425, 121.426 and 121.427 of this part, as applicable to flightcrew members, may be modified for the related aircraft.
The revisions and additions read as follows:
(a) Except as provided in paragraph (b) of this section, initial, conversion, and upgrade ground training for pilots and initial and transition ground training for flight engineers, must include instruction in at least the following as applicable to their assigned duties:
(b) Initial and conversion ground training for pilots who have completed the airline transport pilot certification training program in § 61.156 of this chapter, and transition ground training for pilots, must include instruction in at least the following as applicable to their assigned duties:
(c) Beginning on [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], and in addition to the requirements in paragraphs (a) or (b) of this section, as applicable, initial ground training for pilots in command must include instruction on the following:
(1) Leadership and command, including flightcrew member duties under § 121.542 of this part; and
(2) Mentoring, including techniques for instilling and reinforcing the highest standards of technical performance, airmanship, and professionalism in newly employed pilots.
(f) * * *
(1) * * *
(2) Beginning March 12, 2019, initial programmed hours applicable to pilots as specified in paragraphs (d) and (e) of this section must include 2 additional hours.
(g) Before [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE] upgrade ground training must include either the instruction specified in paragraph (a) of this section or the instruction specified in § 121.420 of this part. Beginning on [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], upgrade ground training must include the instruction specified in § 121.420 of this part.
(a) Upgrade ground training must include instruction in at least the following subjects as applicable to the duties assigned to the pilot in command:
(1) Seat dependent procedures, as applicable;
(2) Duty position procedures, as applicable;
(3) Leadership and command, including flightcrew member duties under § 121.542 of this part;
(4) Crew resource management, including decision making, authority and responsibility and conflict resolution; and
(5) Mentoring, including techniques for reinforcing the highest standards of technical performance, airmanship and professional development in newly employed pilots.
(b) Compliance date. Beginning on [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], upgrade ground training must satisfy the requirements of this section.
The revisions and additions read as follows:
(a) Initial, transition, conversion, and upgrade flight training for pilots must include the following:
(b) Beginning on [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], in addition to the requirements in paragraph (a) of this section, initial flight training for pilots in command must include sufficient scenario based training incorporating CRM and leadership and command skills, to ensure the pilot's proficiency as pilot in command. The training required by this paragraph may be completed inflight or in an FSTD.
(e) * * *
(1) * * *
(i) Training and practice in the FFS in at least all of the maneuvers and procedures set forth in appendix E to this part for initial flight training that are capable of being performed in an FFS; and
(ii) A proficiency check in the FFS or the airplane to the level of proficiency of a pilot in command or second in command, as applicable, in at least the maneuvers and procedures set forth in appendix F to this part that are capable of being performed in an FFS.
(g) Before [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE] upgrade flight training must be provided in accordance with either this section or § 121.426 of this part. Beginning on [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], upgrade flight training must be provided as specified in § 121.426 of this part.
(a) Upgrade flight training for pilots must include the following:
(1) Seat dependent maneuvers and procedures, as applicable;
(2) Duty position maneuvers and procedures, as applicable;
(3) Extended envelope training set forth in § 121.423 of this part;
(4) Maneuvers and procedures set forth in the certificate holder's low altitude windshear flight training program;
(5) Sufficient scenario based training incorporating CRM and leadership and command skills, to ensure the pilot's proficiency as pilot in command; and
(6) Sufficient training to ensure the pilot's knowledge and skill with respect to the following:
(i) The airplane, its systems and components;
(ii) Proper control of airspeed, configuration, direction, altitude and attitude in accordance with the Airplane Flight Manual, the certificate holder's operations manual, checklists or other approved material appropriate to the airplane type; and
(iii) Compliance with ATC, instrument procedures, or other applicable procedures.
(b) The training required by paragraph (a) of this section must be performed inflight except—
(1) That windshear maneuvers and procedures must be performed in an FFS in which the maneuvers and procedures are specifically authorized to be accomplished;
(2) That the extended envelope training required by § 121.423 must be performed in a Level C or higher FFS unless the Administrator has issued to the certificate holder a deviation in accordance with § 121.423(e); and
(3) To the extent that certain other maneuvers and procedures may be performed in an FFS, an FTD, or a static airplane as permitted in appendix E to this part.
(c) If the certificate holder's approved training program includes a course of training utilizing an FFS under § 121.409(c) and (d) of this part, each pilot must successfully complete—
(1) With respect to § 121.409(c) of this part—A proficiency check in the FFS or the airplane to the level of proficiency of a pilot in command in at least the maneuvers and procedures set forth in appendix F to this part that are capable of being performed in an FFS.
(2) With respect to § 121.409(d) of this part, training and practice in at least the maneuvers and procedures set forth in the certificate holder's approved low-altitude windshear flight training program that are capable of being performed in an FFS in which the maneuvers and procedures are specifically authorized.
(d) Compliance dates. Beginning on [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], upgrade flight training must satisfy the requirements of this section, except for the extended envelope training in paragraph (a)(3) and (b)(2) of this section. Upgrade flight training must include the requirements of paragraph (a)(3) and (b)(2) beginning on March 12, 2019.
The revisions and additions read as follows:
(b) * * *
(2) Instruction as necessary in the following:
(i) For pilots, the subjects required for ground training by §§ 121.415(a)(1), (a)(3), and (a)(4) and 121.419(b);
(ii) For flight engineers, the subjects required for ground training by §§ 121.415(a)(1), (a)(3), and (a)(4) and 121.419(a);
(iii) For flight attendants, the subjects required for ground training by §§ 121.415(a)(1), (a)(3), and (a)(4) and 121.421(a); and
(iv) For aircraft dispatchers, the subjects required for ground training by §§ 121.415(a)(1) and (a)(4) and 121.422(a).
(4) For crewmembers, CRM training and for aircraft dispatchers, DRM training. For flightcrew members, CRM training or portions thereof may be accomplished during an approved FFS line-oriented flight training (LOFT) session.
(c) Recurrent ground training for crewmembers and dispatchers must consist of at least the following programmed hours of instruction in the required subjects specified in paragraph (b) unless reduced under § 121.405:
(1) For pilots—
(i) Group I reciprocating powered airplanes, 15 hours;
(ii) Group I turbopropeller powered airplanes, 19 hours; and
(iii) Group II airplanes, 24 hours.
(d) Recurrent ground training for pilots serving as pilot in command.
(1) Within 36 months preceding service as pilot in command, each person must complete ground training on leadership and command, including instruction on flightcrew member duties under § 121.542 of this part, and mentoring. This training is in addition to the ground training required in paragraph (b) of this section and the programmed hours required in paragraph (c) of this section.
(2) The requirements of paragraph (d)(1) do not apply until after a pilot has completed ground training on leadership and command and mentoring, as required by §§ 121.419, 121.420 and 121.429 of this part, as applicable.
(e) * * *
(1) * * *
(ii) Flight training in an approved FFS in maneuvers and procedures set forth in the certificate holder's approved low-altitude windshear flight training program and flight training in maneuvers and procedures set forth in appendix F to this part, or in a flight training program approved by the Administrator, except as follows—
(2) * * *
(ii) The flight check, other than the preflight inspection, may be conducted in an FSTD. The preflight inspection may be conducted in an airplane, or by using an approved pictorial means that realistically portrays the location and detail of preflight inspection items and provides for the portrayal of abnormal conditions. Satisfactory completion of an approved line-oriented flight training may be substituted for the flight check.
(f) * * *
(1) Compliance with the requirements identified in paragraph (e)(1)(i) of this section is required no later than March 12, 2019.
(a) Beginning on [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], no certificate holder may use a pilot as pilot in command in an operation under this part unless the pilot has completed the following ground training in accordance with the certificate holder's approved training program:
(1) Leadership and command training in § 121.419(c)(1) of this part and mentoring training in § 121.419(c)(2) of this part; or
(2) Leadership and command training in § 121.420(a)(3) of this part and mentoring training in § 121.420(a)(5) of this part.
(b) Credit for training provided by the certificate holder.
(1) The Administrator may credit leadership and command training and mentoring training completed by the pilot, with that certificate holder, prior to [60 DAYS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE
(2) In granting credit for the training required by paragraph (a) of this section, the Administrator may consider training aids, devices, methods and procedures used by the certificate holder in voluntary leadership and command and mentoring instruction.
(a) * * *
(1) Prescribes crewmember qualifications for all certificate holders except where otherwise specified; and
(a) Except in the case of operating experience under § 121.434 of this part and ground training for leadership and command and mentoring required by §§ 121.419, 121.420, 121.427 and 121.429 of this part, as applicable, a pilot who serves as second in command of an operation that requires three or more pilots must be fully qualified to act as pilot in command of that operation.
(d)
(2)
(ii) Operations familiarization must include at least two operating cycles conducted by the certificate holder in accordance with the operating rules of this part.
(iii) All pilots completing operations familiarization must occupy the observer seat on the flight deck and have access to and use an operational headset.
(3)
(ii) A request for deviation from any of the requirements in paragraphs (d)(1) and (d)(2) of this section must include the following information:
(A) The total number and types of aircraft operated by the certificate holder in operations under this part that do not have an observer seat on the flight deck;
(B) The total number and types of aircraft operated by the certificate holder in operations under this part that do have an observer seat on the flight deck; and
(C) Alternative methods for achieving the objectives of this section.
(iii) A certificate holder may request an extension of a deviation issued under this section.
(iv) Deviations or extensions to deviations will be issued for a period not to exceed 12 months.
The revision reads as follows:
(a) * * *
(2) Crewmembers who have qualified and served as second in command or flight engineer on a particular type airplane may serve as pilot in command or second in command, respectively, upon completion of upgrade or conversion training, as applicable, for that airplane as provided in § 121.415.
The addition and revision read as follows:
(b) * * *
(3) In the case of a pilot who satisfactorily completed the preflight visual inspection of an aircraft by pictorial means during a proficiency check, the pilot must also demonstrate proficiency to a check pilot on at least one complete preflight visual inspection of the interior and exterior of a static airplane. This demonstration of proficiency must be completed by the pilot and certified by the check pilot before the completion of operating experience.
(c) * * *
(1) * * *
(ii) For a qualifying pilot in command completing initial or upgrade training specified in §§ 121.424 or 121.426 of this part, be observed in the performance of prescribed duties by an FAA inspector during at least one flight leg which includes a takeoff and landing.
The revisions read as follows:
(a) No certificate holder may use any person nor may any person serve as a required pilot flightcrew member, unless within the preceding 90 days, that person has made at least three takeoffs and landings in the type airplane in which that person is to serve. The takeoffs and landings required by this paragraph may be performed in a Level B or higher FFS approved under § 121.407 to include takeoff and landing maneuvers. In addition, any person who fails to make the three required takeoffs and landings within any consecutive 90-day period must re-establish recency of experience as provided in paragraph (b) of this section.
(b) In addition to meeting all applicable training and checking requirements of this part, a required pilot flightcrew member who has not met the requirements of paragraph (a) of this section must re-establish recency of experience as follows:
(1) Under the supervision of a check airman, make at least three takeoffs and landings in the type airplane in which that person is to serve or in a Level B or higher FFS.
(c) [Reserved]
(d) When using an FFS to accomplish any of the requirements of paragraphs (a) or (b) of this section, each required flightcrew member position must be occupied by an appropriately qualified person and the FFS must be operated as if in a normal inflight environment without use of the repositioning features of the FFS.
(e) A check airman who observes the takeoffs and landings prescribed in paragraph (b)(1) of this section shall certify that the person being observed is proficient and qualified to perform flight duty in operations under this part and may require any additional maneuvers that are determined necessary to make this certifying statement.
The revision reads as follows:
(d) A person giving a proficiency check may, in his discretion, waive any of the maneuvers or procedures for which a specific waiver authority is set forth in appendix F to this part if the conditions in paragraphs (d)(1) through (3) of this section are satisfied:
(1) The Administrator has not specifically required the particular maneuver or procedure to be performed.
(2) The pilot being checked is, at the time of the check, employed by a certificate holder as a pilot.
(3) The pilot being checked meets one of the following conditions:
(i) The pilot is currently qualified for operations under this part in the particular type airplane and flightcrew member position.
(ii) The pilot has, within the preceding six calendar months, satisfactorily completed an approved training curriculum, except for an upgrade training curriculum in accordance with §§ 121.420 and 121.426 of this part, for the particular type airplane.
The maneuvers and procedures required by § 121.424 of this part for pilot initial, transition, and conversion flight training are set forth in the certificate holder's approved low-altitude windshear flight training program, § 121.423 extended envelope training, and in this appendix. The maneuvers and procedures required for upgrade training in accordance with § 121.424 of this part are set forth in this appendix and in the certificate holder's approved low-altitude windshear flight training program and § 121.423 extended envelope training. For the maneuvers and procedures required for upgrade training in accordance with § 121.426, this appendix
All required maneuvers and procedures must be performed inflight except that windshear and extended envelope training maneuvers and procedures must be performed in a full flight simulator (FFS) in which the maneuvers and procedures are specifically authorized to be accomplished. Certain other maneuvers and procedures may be performed in an FFS, a flight training device (FTD), or a static airplane as indicated by the appropriate symbol in the respective column opposite the maneuver or procedure.
Whenever a maneuver or procedure is authorized to be performed in an FTD, it may be performed in an FFS, and in some cases, a static airplane. Whenever the requirement may be performed in either an FTD or a static airplane, the appropriate symbols are entered in the respective columns.
A Level B or higher FFS may be used instead of the airplane to satisfy the inflight requirements if the FFS is approved under § 121.407 of this part and is used as part of an approved program that meets the requirements for an Advanced Simulation Training Program in appendix H of this part.
For the purpose of this appendix, the following symbols mean—
34. Revise appendix F to read as follows:
The maneuvers and procedures required by § 121.441 for pilot proficiency checks are set forth in this appendix. Except for the equipment examination, these maneuvers and procedures must be performed inflight. Certain maneuvers and procedures may be performed in a full flight simulator (FFS), or a flight training device (FTD) as indicated by the appropriate symbol in the respective column opposite the maneuver or procedure.
Whenever a maneuver or procedure is authorized to be performed in an FTD, it may be performed in an FFS.
A Level B or higher FFS may be used instead of the airplane to satisfy the inflight requirements if the FFS is approved under § 121.407 and is used as part of an approved program that meets the requirements for an Advanced Simulation Training Program in appendix H of this part.
For the purpose of this appendix, the following symbols mean—
Throughout the maneuvers and procedures prescribed in this appendix, good judgment commensurate with a high level of safety must be demonstrated. In determining whether such judgment has been shown, the person conducting the check considers adherence to approved procedures, actions based on analysis of situations for which there is no prescribed procedure or recommended practice, and qualities of
This appendix prescribes the requirements for use of Level B or higher FFSs to satisfy the inflight requirements of appendices E and F of this part and the requirements of § 121.439. The requirements in this appendix are in addition to the FFS approval requirements in § 121.407. Each FFS used under this appendix must be approved as a Level B, C, or D FFS, as appropriate.
For a certificate holder to conduct Level C or D training under this appendix all required FFS instruction and checks must be conducted under an advanced simulation training program approved by the Administrator for the certificate holder. This program must also ensure that all instructors and check airmen used in appendix H training and checking are highly qualified to provide the training required in the training program. The advanced simulation training program must include the following:
1. The certificate holder's initial, transition, conversion, upgrade and recurrent FFS training programs and its procedures for re-establishing recency of experience in the FFS.
2. How the training program will integrate Level B, C, and D FFSs with other FSTDs to maximize the total training, checking, and certification functions.
3. Documentation that each instructor and check airman has served for at least 1 year in that capacity in a certificate holder's approved program or has served for at least 1 year as a pilot in command or second in command in an airplane of the group in which that pilot is instructing or checking.
4. A procedure to ensure that each instructor and check airman actively participates in either an approved regularly scheduled line flying program as a flightcrew member or an approved line observation program in the same airplane type for which that person is instructing or checking.
5. A procedure to ensure that each instructor and check airman is given a minimum of 4 hours of training each year to become familiar with the certificate holder's advanced simulation training program, or changes to it, and to emphasize their respective roles in the program. Training for instructors and check airmen must include training policies and procedures, instruction methods and techniques, operation of FFS controls (including environmental and trouble panels), limitations of the FFS, and minimum equipment required for each course of training.
6. A special Line-Oriented Flight Training (LOFT) program to facilitate the transition from the FFS to line flying. This LOFT program must consist of at least a 4-hour course of training for each flightcrew. It also must contain at least two representative flight segments of the certificate holder's operations. One of the flight segments must contain strictly normal operating procedures from push back at one airport to arrival at another. Another flight segment must contain training in appropriate abnormal and emergency flight operations. After March 12, 2019, the LOFT must provide an opportunity for the pilot to demonstrate workload management and pilot monitoring skills.
1. Level B FFS
a. Recent experience (§ 121.439).
b. Training in night takeoffs and landings (part 121, appendix E).
c. Landings in a proficiency check (part 121, appendix F).
2. Level C and D FFS
a. Recent experience (§ 121.439).
b. All pilot flight training and checking required by this part except the following:
i. The operating experience, operating cycles, and consolidation of knowledge and skills requirements of § 121.434;
ii. The line check required by § 121.440; and
iii. The visual inspection of the exterior and interior of the airplane required by appendices E and F.
c. The practical test requirements of § 61.153(h) of this chapter, except the visual inspection of the exterior and interior of the airplane.
49 U.S.C. 106(f), 106(g), 40113, 41706, 44701-44702, 44705, 44709, 44711-44713, 44715-44717, 44722, 44730, 45101-45105.
(d) Additional limitations applicable to certificate holders that are required by paragraph (b) of this section or authorized in accordance with paragraph (c) of this section, to comply with subparts N and O of part 121 of this chapter instead of subparts E, G, and H of this part.
(1)
(ii) Each certificate holder must include in upgrade flight training for pilots, flight training for the maneuvers and procedures required in § 121.424(a), (c), (e) and (f) of this chapter; and, for pilots serving in crews of two or more pilots, beginning on [24 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], the flight training required in § 121.424(b) of this chapter.
(2)
(3)
Issued in Washington, DC, under the authority provided by 49 U.S.C. 106(f), 44701(a) and Sec. 206 of Public Law 111-216, 124 Stat. 2348 (49 U.S.C. 44701 note).
United States Patent and Trademark Office, Commerce.
Final rule.
The United States Patent and Trademark Office (“USPTO” or “Office”) is amending the Trademark Rules of Practice (“Trademark Rules” or “Rules”), in particular the rules pertinent to practice before the Trademark Trial and Appeal Board (“Board”), to benefit the public by providing for more efficiency and clarity in inter partes and ex parte proceedings. Certain amendments are directed to reducing the burden on the parties, to conforming the rules to current practice, to updating references that have changed, to reflecting technologic changes, and to ensuring the usage of standard, current terminology. This final rule also furthers strategic objectives of the Office to increase end-to-end electronic processing.
This rule is effective January 14, 2017.
Cheryl Butler, Trademark Trial and Appeal Board, by email at
Other amendments address the Board's standard protective order and codify recent case law, including the submission of internet materials. Recognition of remote attendance at oral hearings is codified, and new requirements for notification to the Office and the Board when review by way of civil action is taken are added in order to avoid premature termination of a Board proceeding. The amendments also make minor changes to correct or update certain rules so that they clearly reflect current Board practice and terminology.
References below to “the Act,” “the Trademark Act,” or “the statute” refer to the Trademark Act of 1946, 15 U.S.C. 1051
The last major set of rule changes at the Board took effect in 2007; the time is ripe for changes that will assist stakeholders in achieving more efficient practice before the Board. In the years since 2007, technology changes have allowed Board operations to move much closer toward the goal of realizing a fully integrated paperless filing and docketing system. In addition, many stakeholders have embraced use of the Board's Accelerated Case Resolution (“ACR”) procedures, which have provided the Board with insight as to the effectiveness of the various procedures to which users of ACR have agreed, and which can be leveraged to benefit all parties involved in Board proceedings. The Federal Rules of Civil Procedure have changed in ways that are appropriate to recognize in Board rules at this time, and the Board rules must be updated to reflect precedential decisions of the Board and the courts.
The amended rules require all filings be made through ESTTA, except examining attorney filings in ex parte appeals which are filed through the Office's internal electronic system.
In 2007, the USPTO amended the rules to require each plaintiff to serve the complaint on the defendant. This was a change from long-standing practice where the Board served the complaint on the defendant with the notice of institution. The rules now shift the responsibility for serving the complaint back to the Board. However, in keeping with the progress toward complete electronic communication, the Board will not forward a paper copy of the complaint, but rather will serve the complaint in the form of a link to, or web address for the Board's electronic case file system (“TTABVUE”) in the notice of institution.
Under the 2007 rules, parties were allowed (and encouraged) to stipulate to electronic service between the parties for all filings with the Board. Over the last few years, this has become the common practice, and the USPTO is codifying that practice in this final rule by requiring service between parties by email for all filings with the Board and any other papers served on a party not required to be filed with the Board (
In view of service by email, the additional five days previously added to a prescribed period for response, to account for mail delays, is removed by
The rules reflect amendments to the Federal Rules of Civil Procedure by addressing the concept of “proportionality” in process and procedure in discovery. In addition, this final rule codifies the ability of parties to stipulate to limit discovery by shortening the period, limiting requests, using reciprocal disclosures in lieu of discovery, or eliminating discovery altogether. To further reflect the Federal Rules of Civil Procedure, the rules explicitly include reference to electronically stored information (“ESI”) and tangible things as subject matter for discovery. The Board continues to view the universe of ESI within the context of its narrower scope of jurisdiction, as compared to that of the federal district courts. The burden and expense of e-discovery will weigh heavily in any consideration.
Under the amendments, motions to compel initial disclosures must be filed within 30 days after the deadline for initial disclosures.
The amended rules limit the number of requests for production of documents and requests for admissions to 75, the same as the current limitation on interrogatories, with the option to move for additional requests for good cause. In addition, the rules allow for each party that has received produced documents to serve one comprehensive request for admission on the producing party, whereby the producing party would authenticate specific produced documents or specify which of those documents cannot be authenticated. These limitations on discovery simply recognize general practice and are meant to curtail abuse and restrain litigation expense for stakeholders.
Many trial cases are quickly settled, withdrawn, or decided by default, and many others involve cooperative parties who engage in useful settlement and discovery planning conferences. For more contentious cases, parties may request involvement of a Board Interlocutory Attorney in the conference, and this final rule codifies the ability of the Interlocutory Attorneys to sua sponte participate in a discovery conference when they consider it useful. In addition, the circumstances under which telephone conferences with Interlocutory Attorneys can be sought by a party or initiated by the Interlocutory Attorney are broadened to encompass any circumstance in which they “would be beneficial.”
Under the amended rules, discovery must be served early enough in the discovery period that responses will be provided and all discovery will be complete by the close of discovery. This includes production of documents, which have to be produced or inspected by the close of discovery.
Under the amended rules, discovery disputes have to be resolved promptly following the close of discovery. The deadline for filing motions to compel discovery or to determine the sufficiency of responses to requests for admissions is now prior to the deadline for the plaintiff's pretrial disclosures for the first testimony period. These revisions are intended to avoid the expense and uncertainty that arise when discovery disputes erupt on the eve of trial. These changes also ensure that pretrial disclosures are made and trial preparation is engaged in only after all discovery issues have been resolved. In addition, the Board will be able to reset the pretrial disclosure deadline and testimony periods after resolving any motions relating to discovery and allowing time for compliance with any orders requiring additional responses or production.
In 2007, the rules were amended to make the Board's standard protective order applicable in all proceedings, during disclosure, discovery, and trial, though parties have been able to agree to alternative orders, subject to Board approval. This has worked well, and this final rule clarifies that the protective order is automatically applicable in all inter partes proceedings, subject to specified exceptions. Parties continue to have the flexibility to move forward under an alternative order by stipulation or motion approved by the Board. This final rule also codifies practice and precedent that the Board may treat as not confidential material that cannot reasonably be considered confidential, notwithstanding party designations.
Since 2007, several types of consented motions for extensions and suspensions have been granted automatically by the Board's electronic filing system and this final rule codifies this practice, while retaining the ability of Board personnel to require that certain conditions be met prior to approval. Thus, the practice by which some consented motions to extend or suspend are not automatically approved and are reviewed and processed by a Board paralegal or attorney continues. In addition, non-dispositive matters can be acted on by paralegals, and the rules clarify that orders on motions under the designation, “By the Trademark Trial and Appeal Board,” have the same legal effect as orders by a panel of three judges.
To clarify the obligations of the parties and render the status and timeline for a case more predictable, this final rule provides that a trial proceeding is suspended upon filing of a timely, potentially dispositive motion.
As with the timing of motions relating to discovery disputes that remain unresolved by the parties at the close of discovery, referenced above, under the amended rules motions for summary judgment also have to be filed prior to the deadline for plaintiff's pretrial disclosures for the first testimony period. This avoids disruption of trial planning and preparation through the filing, as late as on the eve of trial, of motions for summary judgment.
The existing rule for convening a pretrial conference because of the complexity of issues is amended so that it is limited to exercise only by the Board, upon the Board's initiative.
For some time now, parties have had the option to stipulate to ACR, which can be adopted in various forms. A common approach is for parties to stipulate that summary judgment cross motions will substitute for a trial record and traditional briefs at final hearing and the Board may resolve any issues of fact that otherwise might be considered subject to dispute. Other approaches adopted by parties utilizing the efficiencies of the ACR process have included agreements to limit discovery, agreements to shorten trial periods or the time between trial periods, stipulations to facts or to the admissibility of documents or other evidence, and stipulations to proffers of testimony by declaration or affidavit. These types of efficiencies are codified through this final rule by specifically providing for such stipulations and, most significantly, by allowing a unilateral option for trial testimony by affidavit or declaration subject to the right of oral cross-examination by the adverse party or parties. Parties also continue to be able to stipulate to rely
This final rule codifies two changes in recent years, effected by case law and practice, expanding the option to submit certain documents by notice of reliance. First, this final rule codifies existing law that pleaded registrations and registrations owned by any party may be made of record via notice of reliance by submitting therewith a current copy of information from the USPTO electronic database records showing current status and title. The rules currently allow for such copies to be attached to the notice of opposition or petition for cancellation; the change specifically also allows for such copies to be submitted under notice of reliance. Second, this final rule codifies that internet materials also may be submitted under a notice of reliance, as provided by
To alleviate any uncertainty, this final rule adds a paragraph to the requirements for a notice of reliance, specifically, to require that the notice indicate generally the relevance of the evidence and associate it with one or more issues in the proceeding. In an effort to curtail motion practice on this point, the rule explicitly states any failure of a notice of reliance to meet this requirement will be considered a curable procedural defect. This codifies the holding of
Under the rule changes, a party must file any motion to use a discovery deposition at trial along with its pretrial disclosures. Also, an adverse party is able to move to quash a notice of testimony deposition if the witness was not included in the pretrial disclosures, and an adverse party is able to move to strike testimony presented by affidavit or declaration if the witness was not included in the pretrial disclosure.
In response to
The Board has seen an increase in testimony deposition transcripts that do not include a word index, and the final rule requires a word index for all testimony transcripts. For ease of review, deposition transcripts also have to be submitted in full-sized format, not condensed with multiple pages per sheet. More broadly, the rules make clear that it is the parties' responsibility to ensure that all exhibits pertaining to an electronic submission must be clear and legible.
This final rule codifies case law and Board practice under which the Board may sua sponte grant judgment for the defendant when the plaintiff has not submitted evidence, even where the plaintiff has responded to the Board's show cause order for failure to file a brief but has either not moved to reopen its trial period or not been successful in any such motion.
To alleviate confusion and codify case law, the amended rules clarify that evidentiary objections may be set out in a separate appendix that does not count against the page limit for a brief and that briefs exceeding the page limit may not be considered by the Board.
Certain aspects of ex parte appeals procedure are clarified in the amendments. Under this final rule, evidence should not be filed with the Board after the filing of the notice of appeal to the Board and should be added to the record when attached to a timely request for reconsideration or via a request for remand. This is not a change to the substance of the existing rule, but is designed to address a recurring error by applicants during ex parte appeal to the Board.
Under the final rule, reply briefs in ex parte appeals are limited to 10 pages. To facilitate consideration and discussion of record evidence, citation to evidence in all the briefs for the appeal, by the applicant and examining attorney, are to the documents in the electronic application record by docket entry date and page number.
The amended rules align more closely the terminology of § 2.130 pertaining to the Board referring applications involved in inter partes proceedings back to the Trademark Examining Operation upon request with that of § 2.142(d) and (f)(6) remanding applications involved in ex parte appeals back to the Trademark Examining Operation. This is not a change to the substance of the existing rule.
Correlative to electronic filing and communication, the Board also has made it possible for parties, examining attorneys, and members of the Board to attend hearings remotely through video conference. This final rule codifies that option.
In §§ 2.106(a) and 2.114(a), this final rule codifies case law and practice to make it clear that when no answer has been filed, all other deadlines are tolled. If the parties have continued to litigate after an answer is late-filed, it will generally be viewed as a waiver of the technical default.
The amended rules provide that the grounds, goods, and services in a Notice of Opposition to an application under Trademark Act section 66(a) are limited to those identified on the ESTTA cover sheet. These amendments codify the holding of
Requirements for filing appeals of Board decisions are restructured to align with the rules governing review of Patent Trial and Appeal Board decisions. Further, all notices of appeal to the United States Court of Appeals for the Federal Circuit must be filed with the USPTO's Office of General Counsel and a copy filed with the Board via ESTTA. When a party seeks review of a Board inter partes decision by commencing a civil action, the amendments clarify that a notice of such commencement must be filed with the Board via ESTTA to avoid premature termination of the Board proceeding during pendency of the civil action. The amendments further require that both a notice and a copy of the complaint for review of an ex parte decision by way of civil action are to be filed with the USPTO's Office of General Counsel with a copy to be filed with the Board via ESTTA. In addition, requests to extend the time for filing an appeal, or commencing a civil action, are to be filed as provided in 37 CFR 104.2 and addressed to the attention of the Office of the Solicitor, and a copy should be filed with the Board via ESTTA.
The Board began in 2015 looking ahead to the implementation of changes in the Federal Rules of Civil Procedure then scheduled to take effect in December 2015. The Board also looked back on its multi-year campaign to
A proposed rule was published in the
The Office received many positive comments in favor of several rule changes and appreciates the public support. To streamline this final rule, such comments expressing support are not individually set forth and no specific responses to such comments are provided. In addition, comments and responses that apply more generally to issues and multiple rules are presented under the heading General Comments and Responses, while other comments and responses are interwoven into the Discussion of Rule Changes to provide context for those comments. Comments outside the scope of this rulemaking have been considered even if not specifically addressed herein.
To facilitate proper handling, the motion for consolidation in this situation should be included in the same filing with the petition for cancellation, the institution of which will be processed by Board personnel rather than automatically instituted, as with most oppositions. The attached pleading should include a prominent reference to the motion to consolidate. This procedure will help bring the requested consolidation to the Board's attention more promptly.
Turning to oppositions, the rules provide that notice of the opposition will be sent to the “email or correspondence address” of the appropriate recipient, as specified in the rules. Applicants would receive notices by email only if email communication has been authorized. Having authorized email communication, the recipient should be aware that this may include official USPTO correspondence requiring a timely response. Moreover, applicants who have authorized email during the examination of their applications likely will be accustomed to receiving important email notices from the Office, including Office Actions that required a timely response to avoid abandonment of the application. Thus, notice of an opposition to which they must respond will be similar. As all of the USPTO
The Office also plans to continue its efforts to educate the public about trademark solicitations and how to distinguish them from USPTO communications.
The Office is amending § 2.92 to incorporate a nomenclature change from “Examiner of Trademarks” to “examining attorney.”
The Office is amending § 2.98 to incorporate a nomenclature change from “examiner” to “examining attorney.”
The Office is amending § 2.99(c) and (d) to change “notification” to “notice of institution” or “notice,” and to specify that the notice may be transmitted via email.
The Office is revising § 2.99(d)(1) to remove the service requirement for applicants for concurrent use registration and to specify that the notice of institution will include a web link or web address to access the concurrent use proceeding.
The Office is amending § 2.99(d)(2) to clarify that an answer to the notice of institution is not required by an applicant or registrant whose application or registration is acknowledged in the concurrent use application.
The Office is amending § 2.99(d)(3) to clarify that a user who does not file an answer when required is in default, but the burden of providing entitlement to registration(s) remains with the concurrent use applicant(s).
The Office is amending § 2.99(f)(3) to incorporate a nomenclature change from “examiner” to “examining attorney.”
The Office is amending § 2.101(a) and (b) to remove the opposer's requirement to serve a copy of the notice of opposition on applicant.
The Office is amending § 2.101(b)(1) to require that oppositions be filed by the due date in paragraph (c) through ESTTA. The amendment codifies the use of electronic filing.
The Office is amending § 2.101(b)(2) to provide that an opposition against an application based on Sections 1 or 44 of the Trademark Act may be filed in paper form in the event that ESTTA is unavailable due to technical problems or when extraordinary circumstances are present. The amendment also requires that a paper opposition to an application must be accompanied by a Petition to the Director under § 2.146 with the required fees and showing, and to add that timeliness of the submission will be determined in accordance with §§ 2.195 through 2.198.
The Office is amending § 2.101(b) by adding a new paragraph (b)(3) that continues the existing unconditional requirement that an opposition to an application based on Section 66(a) of the Trademark Act must be filed through ESTTA.
The Office is amending § 2.101(c) by moving the content of paragraph (d)(1) to the end of paragraph (c).
The Office is amending § 2.101(d) by removing paragraphs (d)(1), (3), and (4), but retaining the content in paragraph (d)(2) as paragraph (d), and providing that an ESTTA opposition cannot be filed absent sufficient fees and a paper opposition accompanied by insufficient fees may not be instituted, but a potential opposer may resubmit the opposition with the required fee if time remains. The revisions are intended to simplify the rules pertaining to insufficient fees.
The Office is amending § 2.101(d)(4) to redesignate it as § 2.101(e) and clarify that the filing date of an opposition is the date of electronic receipt in the Office of the notice of opposition and required fee and to add that the filing date for a paper filing, where permitted, will be determined in accordance with §§ 2.195 through 2.198.
The Office is amending § 2.102 to omit references to “written” requests for extensions of time, as it is unnecessary in view of the requirement in § 2.191 that all business be conducted in writing.
The Office is amending § 2.102(a)(1) to require that requests to extend the time for filing an opposition be filed through ESTTA by the opposition due date in paragraph 2.101(c). The amendment continues the existing requirement that an opposition to an application based on Section 66(a) of the Act must be filed through ESTTA, but provides that an opposition against an application based on Sections 1 or 44 of the Act may be filed in paper form in the event that ESTTA is unavailable due to technical problems or when extraordinary circumstances are present. The Office is amending § 2.102(a)(2) to require that a paper request to extend the opposition period must be accompanied by a Petition to the Director under § 2.146, with the required fees and showing, and to add that timeliness of the paper submission will be determined in accordance with §§ 2.195 through 2.198.
The Office is amending § 2.102(b) to clarify that an opposition filed during an extension of time must be in the name of the person to whom the extension was granted except in cases of misidentification through mistake or where there is privity.
The Office is amending § 2.102(c)(1) to clarify that a sixty-day extension is not available as a first extension of time to oppose. The Office is amending § 2.102(c)(3) to clarify that only a sixty-day time period is allowed for a final extension of the opposition period.
The Office is adding new § 2.102(d), which clarifies that the filing date of a request to extend the time for filing an opposition is the date of electronic receipt in the Office of the notice of opposition and that the filing date for a paper filing, where permitted, will be determined in accordance with §§ 2.195 through 2.198.
The Office is amending § 2.104(a) to specify that ESTTA requires the opposer to select relevant grounds for opposition, and the accompanying required statement supports and explains the grounds. The amendment codifies current Office practice.
The Office is adding new § 2.104(c) to clarify that with respect to an opposition to an application filed under Section 66(a) of the Trademark Act, the goods and/or services opposed and the grounds for opposition are limited to those set forth in the ESTTA cover sheet. The amendment conforms with Section 68(c)(3) of the Act, is consistent with the amendment to § 2.107(b), and codifies current case law and practice.
However, with respect to oppositions against applications under Trademark Act sections 1 and 44, 15 U.S.C. 1051 and 1126, the concerns with Madrid Protocol applications and notification to the IB do not apply. Therefore, the scope of an opposition need not necessarily be limited to what is set forth in the ESTTA cover sheet, and the complete opposition pleading may inform the scope. Because the primary purpose of the pleadings is to give fair notice of the claims asserted, a complaint may be amended in accordance with Rule 15 of the Federal Rules of Civil Procedure.
The Office is amending § 2.105(a) to remove the service requirement for opposers and to specify that the notice of institution constitutes service and will include a web link or web address to access the electronic proceeding record.
The Office is amending § 2.105(b) and (c) to provide that it will effect service of the notice of opposition at the email or correspondence address of record for the parties, their attorneys, or their domestic representatives.
The Office is amending § 2.106(a) to add that default may occur after the time to answer is reset and that failure to file a timely answer tolls all deadlines until the issue of default is resolved. The amendment codifies current Office practice and is consistent with the Office's amendment to § 2.114(a).
The Office is amending § 2.106(b)(1) to require that answers be filed through ESTTA, but provides that they may be filed in paper form in the event that ESTTA is unavailable due to technical problems or when extraordinary circumstances are present. An answer filed on paper must be accompanied by a Petition to the Director under § 2.146, with the required fees and showing. The amendment codifies the use of electronic filing.
The Office is amending renumbered § 2.106(b)(2) to specify that a reply to an affirmative defense shall not be filed.
The Office is amending renumbered § 2.106(b)(3)(i) to add a requirement that an applicant subject to an opposition proceeding must promptly inform the Board of the filing of another proceeding between the same parties or anyone in privity therewith.
The Office is amending renumbered § 2.106(b)(3)(iv) to clarify that the Board may sua sponte reset the times for pleading, discovery, testimony, briefs, or oral argument.
The Office is amending § 2.107(a) to add that an opposition proceeding may not be amended to add a joint opposer.
The Office is amending § 2.107(b) to clarify that, with respect to an opposition to an application filed under Section 66(a) of the Trademark Act, pleadings may not be amended to add grounds for opposition or goods or services beyond those set forth in the cover sheet, or to add a joint opposer. The amendment conforms with Section 68(c)(3) of the Act, is consistent with the amendment to § 2.104(c), and codifies current case law and practice.
The Office is amending § 2.111(a) and (b) to remove the petitioner's requirement to serve a copy of the petition to cancel on registrant.
The Office is amending § 2.111(c)(1) to require that a petition to cancel a registration be filed through ESTTA. The Office is amending § 2.111(c)(2) to provide that a petition to cancel may be filed in paper form in the event that ESTTA is unavailable due to technical problems or when extraordinary circumstances are present. The amendment also requires that a paper petition to cancel a registration must be accompanied by a Petition to the Director under § 2.146, with the required fees and showing, and to add that timeliness of the submission, if relevant to a ground asserted in the petition to cancel, will be determined in accordance with §§ 2.195 through 2.198. The amendments codify the use of electronic filing.
The Office is deleting § 2.111(c)(3) and adding a new § 2.111(d), which provides that a petition for cancellation cannot be filed via ESTTA absent sufficient fees and a paper petition accompanied by insufficient fees may not be instituted. The revisions are intended to simplify the rules pertaining to insufficient fees.
The Office is redesignating § 2.111(c)(4) as § 2.111(e), which clarifies that the filing date of a petition for cancellation is the date of electronic receipt in the Office of the petition and required fee and adds that the filing date for a paper petition for cancellation, where permitted, will be determined in accordance with §§ 2.195 through 2.198.
The Office is amending § 2.112(a) to add that the petition for cancellation must indicate, to the best of petitioner's knowledge, a current email address(es) of the current owner of the registration.
The Office is further amending § 2.112(a) to specify that ESTTA requires the petitioner to select relevant grounds for cancellation, and that the required accompanying statement supports and explains the grounds. The amendment codifies current Office practice.
The Office is amending § 2.113(a) to remove the service requirement for petitioners and to specify that the notice of institution constitutes service and will include a web link or web address to access the electronic proceeding record.
The Office is amending § 2.113(b) and (c) to provide that it will effect service of the petition for cancellation at the email or correspondence address of record for the parties, their attorneys, or their domestic representatives. The Office is further amending § 2.113(c) to create new paragraphs (c)(1) and (2) for clarity.
The Office is amending § 2.114(a) to add that default may occur after the time to answer is reset and that failure to file a timely answer tolls all deadlines until the issue of default is resolved. The revision codifies current Office practice and is consistent with the Office's amendment to § 2.106(a).
The Office is amending § 2.114(b)(1) to require that answers be filed through ESTTA, but provides that they may be filed in paper form in the event that ESTTA is unavailable due to technical problems or when extraordinary circumstances are present. An answer filed on paper must be accompanied by a Petition to the Director under § 2.146, with the required fees and showing. The amendment codifies the use of electronic filing.
The Office is amending renumbered § 2.114(b)(2) to clarify that a reply to an affirmative defense shall not be filed. The Office is further amending § 2.114(b)(1) to add that a pleaded registration is a registration identified by number by the party in the position of plaintiff in an original or counterclaim petition for cancellation.
The Office is amending renumbered § 2.114(b)(3)(i) to add a requirement that a party in the position of respondent and counterclaim plaintiff must promptly inform the Board of the filing of another proceeding between the same parties or anyone in privity therewith.
The Office is amending renumbered § 2.114(b)(3)(iii) to clarify that the Board may sua sponte reset the period for filing an answer to a counterclaim. The Office is amending renumbered § 2.114(b)(3)(iv) to clarify that the Board may sua sponte reset the times for pleading, discovery, testimony, briefs, or oral argument.
The Office is amending § 2.114(c) to add that counterclaim petitions for cancellation may be withdrawn without prejudice before an answer is filed.
The Office is amending § 2.116(e) to add that the submission of notices of reliance, declarations, and affidavits, as well as the taking of depositions, during the testimony period corresponds to the trial in court proceedings. The revision codifies current Office practice and is consistent with amendments relating to declarations and affidavits.
The Office is amending § 2.116(g) to clarify that the Board's standard protective order, which is available on the Office's Web site, is automatically applicable throughout all inter partes proceedings, subject to specified exceptions. The Office is further amending § 2.116(g) to add that the Board may treat as not confidential material which cannot reasonably be considered confidential, notwithstanding a party's designation. The revisions codify current case law and Office practice.
The Office is amending § 2.117(c) to clarify that the Board may suspend proceedings sua sponte and retains discretion to condition approval of consented or stipulated motions to suspend on the provision by parties of necessary information about the status of settlement talks or discovery or trial activities.
The Office is amending § 2.118 to add notification of non-delivery in paper or electronic form of Board notices and to delete the time period prescribed by the Director.
The Office is incorporating the word “submissions” throughout § 2.119 to codify the use of electronic filing.
The Office is amending § 2.119(a) to remove the service requirements for notices of opposition and petitions to cancel, consistent with amendments to §§ 2.101(a) and (b) and 2.111(a) and (b).
The Office is amending § 2.119(b) to require that all submissions filed with the Board and any other papers served on a party be served by email, unless otherwise stipulated or service by email cannot be made due to technical problems or extraordinary circumstances.
The Office is amending § 2.119(b)(3) to revise the manner of service on a person's residence by stating that a copy of a submission may be left with some person of suitable age and discretion who resides there. The amendment is consistent with both the Patent Rules of Practice and the Federal Rules of Civil Procedure.
The Office is amending § 2.119(b)(6) to remove the requirement for mutual agreement by the parties for service by other forms of electronic transmission and to remove service by notice published in the
The Office is amending § 2.119(c) to remove the provision adding five days to the prescribed period for action after service by the postal service or overnight courier. All fifteen-day response dates initiated by a service date are amended to twenty days.
The Office is amending § 2.119(d) to add that no party may serve submissions by means of the postal service if a party to an inter partes proceeding is not domiciled in the United States and is not represented by an attorney or other authorized representative located in the United States.
The Office is amending § 2.120(a)(1) to add the use of proportionality in process and procedure in discovery, in conformance with the 2015 amendments to the Federal Rules of Civil Procedure, and to reorganize portions of the text for clarity.
The Office is amending § 2.120(a)(2) to add headings for paragraphs (a)(2)(i) through (v) and to reorganize portions of the text for clarity.
The Office is amending renumbered § 2.120(a)(2)(i) to specify that a Board Interlocutory Attorney or Administrative Trademark Judge will participate in a discovery conference when the Board deems it useful. The revision codifies current Office practice.
The Office is amending renumbered § 2.120(a)(2)(iii) to add that the Board may issue an order regarding expert discovery either on its own initiative or on notice from a party of the disclosure of expert testimony.
The Office is amending renumbered § 2.120(a)(2)(iv) to add that parties may stipulate that there will be no discovery, that the number of discovery requests or depositions be limited, or that reciprocal disclosures be used in place of discovery. The amendment codifies some of the stipulations successfully used by parties in ACR procedures and other proceedings incorporating ACR-type efficiencies. The Office is further amending § 2.120(a)(2)(iv) to require that an expert disclosure deadline must always be scheduled prior to the close of discovery. The Office is further amending § 2.120(a)(2)(iv) to clarify that extensions of the discovery period granted by the Board will be limited.
The Office is amending § 2.120(a)(3) to require that discovery requests be served early enough in the discovery period that responses will be due no later than the close of discovery, and when the time to respond is extended, discovery responses may not be due later than the close of discovery. The amendment is intended to alleviate motion practice prompted by responses to discovery requests served after discovery has closed.
The Office is amending § 2.120(b) to require that any agreement by the parties as to the location of a discovery deposition shall be made in writing.
The Office is amending the title of § 2.120(c) to clarify that it applies to foreign parties within the jurisdiction of the United States.
The Office is revising § 2.120(d) such that it addresses only interrogatories, deleting paragraphs (d)(1) and (2). Provisions relating to requests for production are moved to revised § 2.120(e), and § 2.120(f) through (k) are renumbered in conformance.
The Office is amending § 2.120(e) to limit the total number of requests for production to seventy-five and to provide a mechanism for objecting to requests exceeding the limitation parallel to § 2.120(d).
The Office is further amending § 2.120(e) to clarify that the rule applies to electronically stored information as well as documents and tangible things; to provide that the time, place, and manner for production shall comport with the provisions of Rule 34 of the Federal Rules of Civil Procedure, or be made pursuant to agreement of the parties; and to remove the provision that production will be made at the place where the documents and things are usually kept.
The Office is amending renumbered § 2.120(f)(1) to clarify that the rule applies to ESI as well as documents and tangible things. The Office is further amending § 2.120(f)(1) to require that a motion to compel initial disclosures must be filed within thirty days after the deadline therefor and include a copy of the disclosures. The Office is further amending § 2.120(f)(1) to require that a motion to compel discovery must be filed prior to the deadline for pretrial disclosures for the first testimony period, rather than the commencement of that period. The Office is further amending § 2.120(f)(1) to clarify that the request for designation pertains to a witness. The Office is further amending § 2.120(f)(1) to require a showing from the moving party that the party has made a good faith effort to resolve the issues presented in the motion.
The Office is amending renumbered § 2.120(f)(2) to clarify that when a motion to compel is filed after the close of discovery, the parties need not make pretrial disclosures until directed to do so by the Board.
The Office is amending renumbered § 2.120(g) to conform to Federal Rule of Civil Procedure 26(c).
The Office is amending renumbered § 2.120(i) to limit the total number of requests for admission to 75 and to provide a mechanism for objecting to requests exceeding the limitation parallel to § 2.120(d) and (e).
The Office is further amending renumbered § 2.120(i) to permit a party to make one comprehensive request for an admission authenticating specific documents produced by an adverse party, or specifying which of those documents cannot be authenticated.
The Office is amending renumbered § 2.120(i)(1) to require that any motion to test the sufficiency of any objection, including a general objection on the ground of excessive number, must be filed prior to the deadline for pretrial disclosures for the first testimony period, rather than the commencement of that period. The Office is further amending § 2.120(i)(1) to require a showing from the moving party that the party has made a good faith effort to resolve the issues presented in the motion.
The Office is amending renumbered § 2.120(i)(2) to clarify that when a motion to determine the sufficiency of an answer or objection to a request for admission is filed after the close of discovery, the parties need not make pretrial disclosures until directed to do so by the Board.
The Office is amending renumbered § 2.120(j)(1) to state more generally that the Board may schedule a telephone conference whenever it appears that a stipulation or motion is of such nature that a telephone conference would be beneficial. The Office is amending § 2.120(j)(2) to remove provisions allowing parties to move for an in-person meeting with the Board during the interlocutory phase of an inter partes proceeding and the requirement that any such meeting directed by the Board be at its offices. The Board is adding new § 2.120(j)(3) to codify existing practice that parties may not make a recording of the conferences referenced in § 2.120(j)(1) and (2).
The Office is amending renumbered § 2.120(k)(2) to change the time for a motion to use a discovery deposition to when the offering party makes its pretrial disclosures and to clarify that the exceptional circumstances standard applies when this deadline has passed.
The Office is amending renumbered § 2.120(k)(3)(i) to clarify that the disclosures referenced are initial disclosures, to remove the exclusion of disclosed documents, and to incorporate a reference to new § 2.122(g).
The Office is amending renumbered § 2.120(k)(3)(ii) to add that a party may make documents produced by another party of record by notice of reliance alone if the party has obtained an admission or stipulation from the producing party that authenticates the documents. This amendment is consistent with the amendment in renumbered § 2.120(i) permitting a party to make one comprehensive request for an admission authenticating specific documents produced by an adverse party.
The Office is amending renumbered § 2.120(k)(7) to add an authenticated produced document to the list of evidence that may be referred to by any party when it has been made of record.
The Office is amending § 2.121(a) to clarify that evidence must be presented during a party's testimony period. The Office is further amending § 2.121(a) to add that the resetting of a party's testimony period will result in the rescheduling of the remaining pretrial disclosure deadlines without action by any party. These amendments codify current Office practice.
The Office is amending § 2.121(c) to add that testimony periods may be shortened by stipulation of the parties approved by the Board or may be extended on motion granted by the Board or order of the Board. The Office is further amending § 2.121(c) to add that the pretrial disclosure deadlines associated with testimony periods may remain as set if a motion for an extension is denied. These amendments codify current Office practice.
The Office is amending § 2.121(d) to add that stipulations to reschedule the deadlines for the closing date of discovery, pretrial disclosures, and testimony periods must be submitted through ESTTA with the relevant dates set forth and an express statement that all parties agree to the new dates. The amendment codifies the use of electronic filing.
The Office is amending § 2.121(e) to add that the testimony of a witness may be either taken on oral examination and transcribed or presented in the form of an affidavit or declaration, as provided in amendments to § 2.123.
The Office is further amending § 2.121(e) to add that a party may move to quash a noticed testimony deposition of a witness not identified or improperly identified in pretrial disclosures before the deposition. The amendment codifies current Office practice.
The Office is further amending § 2.121(e) to add that when testimony has been presented by affidavit or declaration, but was not covered by an earlier pretrial disclosure, the remedy for any adverse party is the prompt filing of a motion to strike, as provided in §§ 2.123 and 2.124. The amendment aligns the remedy for undisclosed testimony by affidavit or declaration with the remedy for undisclosed deposition testimony.
The Office is amending § 2.122(a) to clarify the heading of the paragraph and to specify that parties may stipulate to rules of evidence for proceedings before the Board. The Office is further amending § 2.122(a), consistent with § 2.120(k)(7), to add that when evidence has been made of record by one party in accordance with these rules, it may be referred to by any party for any purpose permitted by the Federal Rules of Evidence. The amendments codify current Office practice.
The Office is amending § 2.122(b) to clarify the heading of the paragraph and to clarify that statements made in an affidavit or declaration in the file of an application for registration or in the file of a registration are not testimony on behalf of the applicant or registrant and that matters asserted in the files of applications and registrations are governed by the Federal Rules of Evidence, the relevant provisions of the Federal Rules of Civil Procedure, the relevant provisions of Title 28 of the United States Code, and the provisions of this part of title 37 of the Code of Federal Regulations.
The Office is amending § 2.122(d)(1) to replace “printout” with “copy.” The Office is amending § 2.122(d)(2) to add a cross-reference to new § 2.122(g) and to specify that a registration owned by a party may be made of record via notice of reliance accompanied by a current copy of information from the electronic database records of the Office showing the current status and title of the registration. These amendments codify current case law and Office practice.
The Office is amending § 2.122(e) to designate a new paragraph (e)(1), clarify that printed publications must be relevant to a particular proceeding, and add a cross-reference to new § 2.122(g).
The Office is adding new § 2.122(e)(2) permitting admission of internet
The Office is adding new § 2.122(g) detailing the requirements for admission of evidence by notice of reliance. Section 2.122(g) provides that a notice must indicate generally the relevance of the evidence offered and associate it with one or more issues in the proceeding, but failure to do so with sufficient specificity is a procedural defect that can be cured by the offering party within the time set by Board order. The amendment codifies current case law and Office practice.
The Office is amending § 2.123(a)(1) to permit submission of witness testimony by affidavit or declaration and in conformance with the Federal Rules of Evidence, subject to the right of any adverse party to take and bear the expense of oral cross-examination of that witness, as provided in amendments to § 2.121(e), and to add that the offering party must make that witness available. The amendment is intended to promote efficient trial procedure.
The Office is further amending § 2.123(a)(1) to move to § 2.123(a)(2) a provision permitting a motion for deposition on oral examination of a witness in the United States whose testimonial deposition on written questions has been noticed.
The Office is amending § 2.123(b) to remove the requirement for written agreement of the parties to submit testimony in the form of an affidavit, as provided in amendments to § 2.123(a)(1), and to clarify that parties may stipulate to any relevant facts.
The Office is amending § 2.123(c) to remove the option of identifying a witness by description in a notice of examination and to clarify that such notice shall be given to adverse parties before oral depositions.
The Office is further amending § 2.123(c) to add that, when a party elects to take oral cross-examination of an affiant or declarant, the notice of such election must be served on the adverse party and a copy filed with the Board within 20 days from the date of service of the affidavit or declaration and completed within 30 days from the date of service of the notice of election.
The Office is further amending § 2.123(c) to add that the Board may extend the periods for electing and taking oral cross-examination and, when necessary, shall suspend or reschedule proceedings in the matter to allow for the orderly completion of oral cross-examination(s) that cannot be completed within a testimony period.
The Office is amending § 2.123(e)(1) to specify that a witness must be sworn before providing oral testimony. The Office is further amending § 2.123(e)(1) to move from § 2.123(e)(3) the provision that cross-examination is available on oral depositions. The Office is further amending § 2.123(e)(1) to add that, where testimony is proffered by affidavit or declaration, cross-examination is available for any witness within the jurisdiction of the United States, as provided in amendments to § 2.123(a)(1).
The Office is amending § 2.123(e)(2) to remove provisions permitting depositions to be taken in longhand, by typewriting, or stenographically and to specify that testimony depositions shall be recorded.
The Office is amending § 2.123(e)(3) to delete the provision that cross-examination is available on oral depositions, which the Office is moving to § 2.123(e)(1), and to insert paragraphs (e)(1)(i) and (ii) for clarity.
The Office is amending § 2.123(e)(4) to specify that the rule regarding objections pertains to oral examination.
The Office is amending § 2.123(e)(5) to clarify that the rule regarding witness signature relates to the transcript of an oral deposition.
The Office is amending § 2.123(f)(2) to require that deposition transcripts and exhibits shall be filed in electronic form using ESTTA. If the nature of an exhibit, such as CDs or DVDs, precludes electronic transmission via ESTTA, it shall be submitted by mail. The amendment codifies the use of electronic filing.
The Office is amending § 2.123(g)(1) to add that deposition transcripts must be submitted in full-sized format (one page per sheet), not condensed (multiple pages per sheet). The Office is amending § 2.123(g)(3) to add that deposition transcripts must contain a word index, listing the pages where the words appear in the deposition.
The Office is removing § 2.123(i), which permits inspection by parties and printing by the Office of depositions after they are filed in the Office. Section 2.123(j) through (l) is renumbered § 2.123(i) through (k) in conformance.
The Office is amending renumbered § 2.123(j) to add that objection may be made to receiving in evidence any declaration or affidavit. The Office is further amending renumbered § 2.123(j) to provide that objections may not be considered until final hearing.
The Office is adding new § 2.124(b)(3) to provide that a party desiring to take cross-examination by written questions of a witness who has provided testimony by affidavit or declaration shall serve notice on each adverse party and file a copy of the notice with the Board.
The Office is amending § 2.124(d)(1) to clarify that the procedures for examination on written questions apply to both direct testimony and cross-examination. The Office is further amending § 2.124(d)(1) to specify the procedure for cross-examination by written questions of a witness who has provided testimony by affidavit or declaration.
The Office is adding new § 2.124(d)(3) to provide that service of written questions, responses, and cross-examination questions shall be in accordance with § 2.119(b).
The Office is amending § 2.125 to renumber paragraphs (a) through (e) as (b) through (f) and to add new § 2.125(a) to require that one copy of a declaration or affidavit prepared in accordance with § 2.123, with exhibits, shall be served on each adverse party at the time the declaration or affidavit is submitted to the Board during the assigned testimony period.
The Office is amending renumbered § 2.125(b) to add a cross-reference to § 2.124 and to clarify that the paragraph applies to testimony depositions, including depositions on written questions.
The Office is amending renumbered § 2.125(f) to permit sealing of a part of an affidavit or declaration.
The Office is amending § 2.126 to renumber paragraph (a) as (b) and to add new paragraph (a) to require that submissions to the Board must be made via ESTTA. The amendment codifies the use of electronic filing.
Turning to multimedia, ESTTA currently is not configured to accept such submissions, and the Office does not anticipate an ESTTA enhancement to accept multimedia in the near future. Board proceedings are conducted exclusively on the written record. While the Office acknowledges that some commenters have suggested the Board consider accepting video depositions, under the current requirements and practice, such submissions are not permitted, thus rendering it unnecessary to make an electronic filing exception for that purpose. Multimedia files such as specimens for sound or motion marks, having been submitted through the Trademark Electronic Application System (TEAS), may be included in the electronic official record in ex parte appeals. The need to submit multimedia evidence in Board inter partes proceedings infrequently arises when a party submits video or audio evidence, such as commercials. The Board will continue its current practice of accepting DVDs or CDs for this limited purpose, and the submission of such exhibits will be exempt from the requirement to file using ESTTA. When making such a submission of exhibits, parties are advised to include in the accompanying ESTTA filing a “placeholder” exhibit page to indicate the CD or DVD exhibit, and to mail the CD or DVD to the Board. If in the future the Board's electronic filing system can be enhanced to allow the submission of multimedia material, similar to TEAS, the Board will revisit its acceptance of CDs or DVDs.
For other paper filings, the final rule requires a showing by written explanation accompanying the filing that ESTTA was unavailable due to technical problems, or that extraordinary circumstances justify the paper filing. Such explanations must include the specific facts underlying the inability to file by ESTTA, rather than a mere conclusory statement that technical problems or extraordinary circumstances prevented the use of ESTTA. No fee is required. In these situations, parties should consider any such paper filing accepted unless the Board indicates otherwise. Thus, for any filing to which the opposing party would respond, for purposes of the response deadline, the opposing party should proceed as if the paper submission were accepted at the time of its filing and respond accordingly. The Board will review the explanation accompanying the paper filing in its consideration of the filing, and submissions that do not meet the technical problems or extraordinary circumstances showing will not be considered.
The Office intends to continue its flexible, reasonable approach in handling the unusual occasions when USPTO technical problems render ESTTA unavailable. For example, in situations where verifiable issues with USPTO systems prevented electronic filing in the past, the Office's practices have included waiving non-statutory deadlines and waiving petition fees associated with matters concerning the USPTO's technical problems. These and other measures may be taken by the Office as appropriate in the future to avoid negatively impacting prospective
The same holds true regarding the types of situations that would qualify as extraordinary circumstances. Because the assessment would depend on the specific facts, the Office deems it appropriate to address particular situations on a case-by-case basis as they arise.
The Office is adding new § 2.126(a)(1) providing that text in an electronic submission must be filed in at least 11-point type and double-spaced. The amendment is consistent with the amendment to § 2.126(b)(1). The final rule retains the 11-point type size from the existing rule.
The Office is adding new § 2.126(a)(2) to require that exhibits pertaining to an electronic submission must be made electronically as an attachment to the submission and must be clear and legible. The amendment codifies the use of electronic filing.
The Office is amending renumbered § 2.126(b) to permit submissions in paper form in the event that ESTTA is unavailable due to technical problems or when extraordinary circumstances are present. The Office is further amending renumbered § 2.126(b) to require that all submissions in paper form except extensions of time to file a notice of opposition, notices of opposition, petitions to cancel, or answers thereto, must include a written explanation of such technical problems or extraordinary circumstances.
The Office proposed to amend renumbered § 2.126(b)(1) to require that text in a paper submission must be filed in at least 12-point type. Consistent with § 2.126(a)(1), however, the final rule retains the 11-point type size from the existing rule.
The Office is removing the paragraph previously designated § 2.126(b).
The Office is amending § 2.126(c) to provide that submissions to the Board that are confidential in whole or part must be submitted using the “Confidential” selection available in ESTTA or, where appropriate, under a separate paper cover. The Office is further amending § 2.126(c) to clarify that a redacted copy must be submitted concurrently for public viewing.
The Office is amending § 2.127(a) to reflect that all response dates initiated by a service date are twenty days. The Office is further amending § 2.127(a) to add that the time for filing a reply brief will not be reopened.
The Office is amending § 2.127(b) to reflect that all response dates initiated by a service date are twenty days.
The Office is amending § 2.127(c) to add that conceded matters and other matters not dispositive of a proceeding may be acted on by a Paralegal of the Board or by ESTTA and that motions disposed of by orders entitled “By the Trademark Trial and Appeal Board” have the same legal effect as orders by a panel of three Administrative Trademark Judges of the Board. The amendments codify current Office practice.
The Office is amending § 2.127(d) to clarify that a case is suspended when a party timely files any potentially dispositive motion.
The Office is amending § 2.127(e)(1) to require that a motion for summary judgment must be filed prior to the deadline for pretrial disclosures for the first testimony period, rather than the commencement of that period. The Office is further amending § 2.127(e)(1) to change references to Rule 56(f) to 56(d) in conformance with amendments to the Federal Rules of Civil Procedure. The Office is further amending § 2.127(e)(1) to reflect that the reply in support of a motion for summary judgment is due twenty days after service of the response. The Office is further amending § 2.127(e)(1) to add that the time for filing a motion under Rule 56(d) and a reply brief will not be reopened.
The Office is amending § 2.127(e)(2) to add that if a motion for summary judgment is denied, the parties may stipulate that the materials submitted with briefs on the motion be considered at trial as trial evidence, which may be supplemented by additional evidence during trial. The revision codifies an approach used by parties in proceedings incorporating ACR-type efficiencies at trial.
The Office is amending § 2.128(a)(3) to add that, when the Board issues a show cause order for failure to file a brief and there is no evidence of record, if the party responds to the order showing good cause why judgment should not be entered based on loss of interest but does not move to reopen its testimony period based on demonstrable excusable neglect, judgment may be entered against the plaintiff for failure to take testimony or submit evidence. The amendment codifies current case law and practice and is consistent with TBMP section 536.
The Office is amending § 2.128(b) to add that evidentiary objections may be set out in a separate appendix that does not count against the briefing page limit. The amendment codifies current case law and practice and is consistent with TBMP section 801.03. The Office is further amending § 2.128(b) to add that briefs exceeding the page limits may not be considered by the Board, and this also codifies existing practice.
The Office is amending § 2.129(a) to clarify that all statutory members of the Board may hear oral argument. The Office is further amending § 2.129(a) to add that parties and members of the Board may attend oral argument in person or, at the discretion of the Board, remotely. The amendment codifies current Office practices and is consistent with the Office's amendments to § 2.142(e)(1).
The Office is amending § 2.129(b) to add that the Board may deny a request to reset a hearing date for lack of good cause or if multiple requests for rescheduling have been filed.
The Office is amending § 2.129(c) to reflect that all response dates initiated by a service date are twenty days.
The Office is amending § 2.130 to add that, if during an inter partes proceeding involving an application the examining attorney believes certain facts render the mark unregistrable, the examining attorney should request remand of the application rather than simply notify the Board.
The Office is amending § 2.132(a) to clarify that, if a plaintiff has not submitted evidence and its time for taking testimony has expired, the Board may grant judgment for the defendant sua sponte. The Office is further amending § 2.132(a) to reflect that all response dates initiated by a service date are twenty days. The Office is further amending § 2.132(a) to clarify that the standard for the showing required not to render judgment dismissing the case is excusable neglect.
The Office is amending § 2.132(b) to limit evidence to Office records showing the current status and title of a plaintiff's pleaded registrations. The Office is further amending § 2.132(b) to reflect that all response dates initiated by a service date are twenty days. The Office is further amending § 2.132(b) to clarify that the Board may decline to render judgment on a motion to dismiss until all testimony periods have passed.
The Office is amending § 2.134(b) to clarify that the paragraph is applicable to extensions of protection in accordance with the Madrid Protocol.
The Office is amending § 2.136 to specify when a proceeding will be terminated by the Board and the status of an application or registration on termination of an opposition, cancellation, or concurrent use proceeding.
The Office is amending § 2.142 to incorporate a nomenclature change from “examiner” to “examining attorney” and to incorporate email as a possible manner of transmission from the examining attorney.
The Office is amending § 2.142(b)(2) to exempt examining attorney submissions from the ESTTA requirement because they are filed through the Office's internal electronic systems. In view of the shorter page limit for ex parte appeal briefs, the Office is also deleting the requirement that ex parte briefs contain an alphabetical index of cited cases. Finally, the Office is adding that a reply brief from an appellant shall not exceed ten pages in length and that no further briefs are permitted unless authorized by the Board.
The Office is adding new § 2.142(b)(3) to specify that citation to evidence in briefs should be to the documents in the electronic application record by date, the name of the paper under which the evidence was submitted, and the page number in the electronic record. The amendment is intended to facilitate review of record evidence by the applicant, the examining attorney, the Board, and the public.
The Office is amending § 2.142(c) to add that the statement of issues in a brief should note that the applicant has complied with all requirements made by the examining attorney and not the subject of appeal.
The Office is amending § 2.142(d) to clarify that evidence should not be filed with the Board after a notice of appeal is filed. The amendment more directly states the prohibition. The Office is further amending § 2.142(d) for clarity, including by specifying that an appellant or examining attorney who desires to introduce additional evidence after an appeal is filed should submit a request to the Board to suspend the appeal and remand the application for further examination.
The Office is amending § 2.142(e)(1) to clarify that all statutory members of the Board may hear oral argument. The Office is further amending § 2.142(e)(1) to add that appellants, examining attorneys, and members of the Board may attend oral argument in person or, at the discretion of the Board, remotely. The amendment codifies current Office practice and is consistent with the Office's amendments to § 2.129(a).
The Office is amending § 2.142(e)(2) to add that a supervisory or managing attorney may designate an examining
The Office is amending § 2.145 by reorganizing the subjects covered and rewording some provisions to improve the clarity and structure of the rule and to align the provisions with the analogous rules governing judicial review of Patent Trial and Appeal Board decisions in 37 CFR part 90.
From a restructuring standpoint, certain amendments result in existing provisions being moved to a different paragraph of the rule. Specifically, provisions regarding appeals to the U.S. Court of Appeals for the Federal Circuit, which currently appear in paragraphs (a) and (b), are grouped together under paragraph (a). Provisions regarding the process provided for in Section 21(a)(1) of the Act, whereby an adverse party to a Federal Circuit appeal of an inter partes Board decision may file notice of its election to have proceedings conducted by way of a civil action, are moved from paragraph (c), which concerns civil actions, to revised paragraph (b), with the paragraph heading “For a notice of election under section 21(a)(1) to proceed under section 21(b) of the Act.”
Substantively, throughout § 2.145, the Office is removing specific references to times for taking action or other requirements that are specified in the Act or another set of rules (
The Office also is amending the provisions in § 2.145 that require copies of notices of appeal, notices of election, and notices of civil action to be filed with the Trademark Trial and Appeal Board to specify that such notices must be filed with the Board via ESTTA. These amendments codify the use of electronic filing and enhance the Office's ability to properly handle applications, registrations, and proceedings while on review in federal court.
Regarding amendments to the requirements for appeals to the Federal Circuit, the Office is amending § 2.145(a) to add paragraphs (a)(1)-(3). The Office is moving the language currently in § 2.145(a) to new (a)(1) and amending it, in accordance with Section 21(a) of the Act, to include that a registrant who has filed an affidavit or declaration under Section 71 of the Trademark Act and is dissatisfied with the decision of the Director may appeal. The Office is further amending § 2.145(a)(1) to add that it is unnecessary to request reconsideration before filing an appeal of a Board decision, but a party requesting reconsideration must do so before filing a notice of appeal. Section 2.145(a)(2) and (3) specifies the requirements contained in current § 2.145(a) and (b) for filing an appeal to the Federal Circuit.
Regarding amendments to the requirements for filing a civil action in district court in § 2.145(c), the Office is adding in § 2.145(c)(1) an amendment corresponding to the amendment to § 2.145(a)(1) that it is unnecessary for a party to request reconsideration before filing a civil action seeking judicial review of a Board decision, but a party requesting reconsideration must do so before filing the civil action. The Office is replacing current § 2.145(c)(2) with a provision that specifies the requirements for serving the Director with a complaint by an applicant or registrant in an ex parte case who seeks remedy by civil action under section 21(b) of the Act. The amendment, which references Federal Rule of Civil Procedure 4(i) and § 104.2, is intended to facilitate proper service of complaints in such actions on the Director. The Office is replacing current § 2.145(c)(3) with a modified version of the provision currently in § 2.145(c)(4), to specify that the party who commences a civil action for review of a Board decision in an inter partes case must file notice thereof with the Trademark Trial and Appeal Board via ESTTA no later than five business days after filing the complaint in district court. The addition of a time frame for filing the notice of the civil action with the Board, and explicitly stating that the notice must identify the civil action with particularity, is necessary to ensure that the Board is timely notified when parties seek judicial review of its decisions and to avoid premature termination of a proceeding.
The Office is amending § 2.145(d) regarding time for appeal or civil action by restructuring the paragraphs by the type of action (
The Office is amending § 2.145(e) to specify that a request for extension of time to seek judicial review must be filed as provided in § 104.2 and addressed to the attention of the Office of the Solicitor, to which the Director has delegated his or her authority to decide such requests, with a copy filed with the Board via ESTTA. The amendment is intended to facilitate proper filing of and timely action upon extension requests and to avoid premature termination of a Board proceeding.
The Office is amending § 2.190(a) and (c) to reflect a nomenclature change from the Assignment Services Division to the Assignment Recordation Branch. The Office is amending § 2.190(b) to direct that documents in proceedings before the Board be filed through ESTTA. The amendment codifies the use of electronic filing.
The Office is amending § 2.191 to direct that documents in proceedings before the Board be filed through ESTTA. The amendment codifies the use of electronic filing.
The Office is amending § 2.195(d)(3) by deleting the option of filing notices of ex parte appeal by facsimile. This is a conforming amendment to align § 2.195(d)(3) with the final rules requiring that all filings with the Board be through ESTTA.
Accordingly, prior notice and opportunity for public comment for the rule changes are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law.
The rules involve changes to rules of agency practice and procedure in matters before the Trademark Trial and Appeal Board. The primary changes are to codify certain existing practices, increase efficiency and streamline proceedings, and provide greater clarity as to certain requirements in Board proceedings. The rules do not alter any substantive criteria used to decide cases.
The rules will apply to all persons appearing before the Board. Applicants for a trademark and other parties to Board proceedings are not industry-specific and may consist of individuals, small businesses, non-profit organizations, and large corporations. The Office does not collect or maintain statistics in Board cases on small- versus large-entity parties, and this information would be required in order to determine the number of small entities that would be affected by the rules.
The burdens, if any, to all entities, including small entities, imposed by these rule changes will be minor and consist of relatively minor additional responsibilities and procedural requirements on parties appearing before the Board. Two possible sources of burden may come from the requirement that all submissions be filed through the Board's online filing system, the Electronic System for Trademark Trials and Appeals (“ESTTA”), except in certain limited circumstances, and the requirement that service between parties be conducted by email. For impacted entities that do not have the necessary equipment and internet service, this may result in additional costs to obtain this ability or for some types of filings, to petition to file on paper. However, the Office does not anticipate this requirement to impact a significant number of entities, as well over 95 percent of filings are already submitted electronically, and it is common practice among parties to use electronic service.
In most instances the rule changes will lessen the burdens on parties, including small entities. For example, the Office is shifting away from the parties to itself the obligation to serve notices of opposition, petitions for cancellation, and concurrent use proceedings. Moreover, the rules provide for email service of other documents among the parties to a proceeding, thereby eliminating the existing need to arrange for the mailing or hand delivery of these documents. Also, the Office is making discovery less onerous for the parties by imposing limitations on the volume of discovery, incorporating a proportionality requirement, and allowing parties to present direct testimony by affidavit or declaration. The rules also keep burdens and costs lower for the parties by permitting remote attendance at oral hearings, thereby eliminating the need for travel to appear in person. Overall, the rules will have a net benefit to the parties to proceedings by increasing convenience, providing efficiency and clarity in the process, and streamlining the procedures. Therefore, this action will not have a significant economic impact on a substantial number of small entities.
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to, a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.
Administrative practice and procedure, Trademarks.
For the reasons given in the preamble and under the authority contained in 15 U.S.C. 1113, 15 U.S.C. 1123, and 35 U.S.C. 2, as amended, the Office is amending part 2 of title 37 as follows:
15 U.S.C. 1113, 15 U.S.C. 1123, 35 U.S.C. 2, Section 10(c) of Pub. L. 112-29, unless otherwise noted.
An interference which has been declared by the Director will not be instituted by the Trademark Trial and Appeal Board until the examining attorney has determined that the marks which are to form the subject matter of the controversy are registrable, and all of the marks have been published in the Official Gazette for opposition.
* * * If an application which is or might be the subject of a petition for addition to an interference is not added, the examining attorney may suspend action on the application pending termination of the interference proceeding.
(c) If no opposition is filed, or if all oppositions that are filed are dismissed or withdrawn, the Trademark Trial and Appeal Board will send a notice of institution to the applicant for concurrent use registration (plaintiff) and to each applicant, registrant or user specified as a concurrent user in the application (defendants). The notice for each defendant shall state the name and address of the plaintiff and of the plaintiff's attorney or other authorized representative, if any, together with the serial number and filing date of the application. If a party has provided the Office with an email address, the notice may be transmitted via email.
(d)(1) The Board's notice of institution will include a web link or web address to access the concurrent use application proceeding contained in Office records.
(2) An answer to the notice is not required in the case of an applicant or registrant whose application or registration is acknowledged by the concurrent use applicant in the concurrent use application, but a statement, if desired, may be filed within forty days after the issuance of the notice; in the case of any other party specified as a concurrent user in the application, an answer must be filed within forty days after the issuance of the notice.
(3) If an answer, when required, is not filed, judgment will be entered precluding the defaulting user from claiming any right more extensive than that acknowledged in the application(s) for concurrent use registration, but the burden of proving entitlement to registration(s) will remain with the concurrent use applicant(s).
(f) * * *
(3) A true copy of the court decree is submitted to the examining attorney; and
(a) An opposition proceeding is commenced by filing in the Office a timely notice of opposition with the required fee.
(b) Any person who believes that he, she or it would be damaged by the registration of a mark on the Principal Register may file an opposition addressed to the Trademark Trial and Appeal Board. The opposition need not be verified, but must be signed by the opposer or the opposer's attorney, as specified in § 11.1 of this chapter, or other authorized representative, as specified in § 11.14(b) of this chapter. Electronic signatures pursuant to § 2.193(c) are required for oppositions filed through ESTTA under paragraph (b)(1) or (2) of this section.
(1) An opposition to an application must be filed by the due date set forth in paragraph (c) of this section through ESTTA.
(2) In the event that ESTTA is unavailable due to technical problems, or when extraordinary circumstances are present, an opposition against an application based on Section 1 or 44 of the Act may be filed in paper form. A paper opposition to an application based on Section 1 or 44 of the Act must be filed by the due date set forth in paragraph (c) of this section and be accompanied by a Petition to the Director under § 2.146, with the fees therefor and the showing required under this paragraph. Timeliness of the paper submission will be determined in accordance with §§ 2.195 through 2.198.
(3) An opposition to an application based on Section 66(a) of the Act must be filed through ESTTA and may not under any circumstances be filed in paper form.
(c) The opposition must be filed within thirty days after publication (§ 2.80) of the application being opposed or within an extension of time (§ 2.102) for filing an opposition. The opposition must be accompanied by the required fee for each party joined as opposer for each class in the application for which registration is opposed (see § 2.6).
(d) An otherwise timely opposition cannot be filed via ESTTA unless the opposition is accompanied by a fee that is sufficient to pay in full for each named party opposer to oppose the registration of a mark in each class specified in the opposition. A paper opposition that is not accompanied by the required fee sufficient to pay in full for each named party opposer for each class in the application for which registration is opposed may not be instituted. If time remains in the opposition period as originally set or as extended by the Board, the potential opposer may resubmit the opposition with the required fee.
(e) The filing date of an opposition is the date of electronic receipt in the Office of the notice of opposition, and required fee. In the rare instances that filing by paper is permitted under these rules, the filing date will be determined in accordance with §§ 2.195 through 2.198.
The revisions and additions read as follows:
(a) Any person who believes that he, she or it would be damaged by the registration of a mark on the Principal Register may file a request with the Trademark Trial and Appeal Board to extend the time for filing an opposition. The request need not be verified, but must be signed by the potential opposer or by the potential opposer's attorney, as specified in § 11.1 of this chapter, or authorized representative, as specified in § 11.14(b) of this chapter. Electronic signatures pursuant to § 2.193(c) are required for electronically filed extension requests.
(1) A request to extend the time for filing an opposition to an application must be filed through ESTTA by the opposition due date set forth in § 2.101(c). In the event that ESTTA is unavailable due to technical problems, or when extraordinary circumstances are present, a request to extend the opposition period for an application based on Section 1 or 44 of the Act may be filed in paper form by the opposition due date set forth in § 2.101(c). A request to extend the opposition period for an application based on Section 66(a) of the Act must be filed through ESTTA and may not under any circumstances be filed in paper form.
(2) A paper request to extend the opposition period for an application based on Section 1 or 44 of the Act must be filed by the due date set forth in § 2.101(c) and be accompanied by a Petition to the Director under § 2.146, with the fees therefor and the showing required under paragraph (a)(1) of this section. Timeliness of the paper submission will be determined in accordance with §§ 2.195 through 2.198.
(b) A request to extend the time for filing an opposition must identify the potential opposer with reasonable certainty. Any opposition filed during an extension of time must be in the name of the person to whom the extension was granted, except that an opposition may be accepted if the person in whose name the extension was requested was misidentified through mistake or if the opposition is filed in the name of a person in privity with the person who requested and was granted the extension of time.
(c) * * *
(1) A person may file a first request for:
(i) Either a thirty-day extension of time, which will be granted upon request; or
(ii) A ninety-day extension of time, which will be granted only for good cause shown. A sixty-day extension is not available as a first extension of time to oppose.
(2) If a person was granted an initial thirty-day extension of time, that person may file a request for an additional sixty-day extension of time, which will be granted only for good cause shown.
(3) * * * No other time period will be allowed for a final extension of the opposition period. * * *
(d) The filing date of a request to extend the time for filing an opposition is the date of electronic receipt in the Office of the request. In the rare instance that filing by paper is permitted under these rules, the filing date will be determined in accordance with §§ 2.195 through 2.198.
(e) [Reserved]
(a) The opposition must set forth a short and plain statement showing why the opposer believes he, she or it would be damaged by the registration of the opposed mark and state the grounds for opposition. ESTTA requires the opposer to select relevant grounds for opposition. The required accompanying statement supports and explains the grounds.
(c) Oppositions to applications filed under Section 66(a) of the Act are limited to the goods, services and grounds set forth in the ESTTA cover sheet.
(a) When an opposition in proper form (see §§ 2.101 and 2.104) has been filed with the correct fee(s), and the opposition has been determined to be timely and complete, the Trademark Trial and Appeal Board shall prepare a notice of institution, which shall identify the proceeding as an opposition, number of the proceeding, and the application(s) involved; and the notice shall designate a time, not less than thirty days from the mailing date of the notice, within which an answer must be filed. The notice, which will include a Web link or Web address to access the electronic proceeding record, constitutes service of the notice of opposition to the applicant.
(b) The Board shall forward a copy of the notice to opposer, as follows:
(1) If the opposition is transmitted by an attorney, or a written power of
(2) If opposer is not represented by an attorney in the opposition, but opposer has appointed a domestic representative, the Board will send the notice to the domestic representative, at the email or correspondence address of record for the domestic representative, unless opposer designates in writing another correspondence address.
(3) If opposer is not represented by an attorney in the opposition, and no domestic representative has been appointed, the Board will send the notice directly to opposer at the email or correspondence address of record for opposer, unless opposer designates in writing another correspondence address.
(c) The Board shall forward a copy of the notice to applicant, as follows:
(1) If the opposed application contains a clear indication that the application is being prosecuted by an attorney, as defined in § 11.1 of this chapter, the Board shall send the notice described in this section to applicant's attorney at the email or correspondence address of record for the attorney.
(2) If the opposed application is not being prosecuted by an attorney but a domestic representative has been appointed, the Board will send the notice described in this section to the domestic representative, at the email or correspondence address of record for the domestic representative, unless applicant designates in writing another correspondence address.
(3) If the opposed application is not being prosecuted by an attorney, and no domestic representative has been appointed, the Board will send the notice described in this section directly to applicant, at the email or correspondence address of record for the applicant, unless applicant designates in writing another correspondence address.
(a) If no answer is filed within the time initially set, or as may later be reset by the Board, the opposition may be decided as in case of default. The failure to file a timely answer tolls all deadlines, including the discovery conference, until the issue of default is resolved.
(b)(1) An answer must be filed through ESTTA. In the event that ESTTA is unavailable due to technical problems, or when extraordinary circumstances are present, an answer may be filed in paper form. An answer filed in paper form must be accompanied by a Petition to the Director under § 2.146, with the fees therefor and the showing required under this paragraph (b).
(2) An answer shall state in short and plain terms the applicant's defenses to each claim asserted and shall admit or deny the averments upon which the opposer relies. If the applicant is without knowledge or information sufficient to form a belief as to the truth of an averment, applicant shall so state and this will have the effect of a denial. Denials may take any of the forms specified in Rule 8(b) of the Federal Rules of Civil Procedure. An answer may contain any defense, including the affirmative defenses of unclean hands, laches, estoppel, acquiescence, fraud, mistake, prior judgment, or any other matter constituting an avoidance or affirmative defense. When pleading special matters, the Federal Rules of Civil Procedure shall be followed. A reply to an affirmative defense shall not be filed. When a defense attacks the validity of a registration pleaded in the opposition, paragraph (b)(3) of this section shall govern. A pleaded registration is a registration identified by number by the party in the position of plaintiff in an original notice of opposition or in any amendment thereto made under Rule 15 of the Federal Rules of Civil Procedure.
(3)(i) A defense attacking the validity of any one or more of the registrations pleaded in the opposition shall be a compulsory counterclaim if grounds for such counterclaim exist at the time when the answer is filed. If grounds for a counterclaim are known to the applicant when the answer to the opposition is filed, the counterclaim shall be pleaded with or as part of the answer. If grounds for a counterclaim are learned during the course of the opposition proceeding, the counterclaim shall be pleaded promptly after the grounds therefor are learned. A counterclaim need not be filed if the claim is the subject of another proceeding between the same parties or anyone in privity therewith; but the applicant must promptly inform the Board, in the context of the opposition proceeding, of the filing of the other proceeding.
(ii) An attack on the validity of a registration pleaded by an opposer will not be heard unless a counterclaim or separate petition is filed to seek the cancellation of such registration.
(iii) The provisions of §§ 2.111 through 2.115, inclusive, shall be applicable to counterclaims. A time, not less than thirty days, will be designated by the Board within which an answer to the counterclaim must be filed.
(iv) The times for pleading, discovery, testimony, briefs or oral argument may be reset or extended when necessary, upon motion by a party, or as the Board may deem necessary, to enable a party fully to present or meet a counterclaim or separate petition for cancellation of a registration.
(a) Pleadings in an opposition proceeding against an application filed under section 1 or 44 of the Act may be amended in the same manner and to the same extent as in a civil action in a United States district court, except that, after the close of the time period for filing an opposition including any extension of time for filing an opposition, an opposition may not be amended to add to the goods or services opposed, or to add a joint opposer.
(b) Pleadings in an opposition proceeding against an application filed under section 66(a) of the Act may be amended in the same manner and to the same extent as in a civil action in a United States district court, except that, once filed, the opposition may not be amended to add grounds for opposition or goods or services beyond those identified in the notice of opposition, or to add a joint opposer. The grounds for opposition, the goods or services opposed, and the named opposers are limited to those identified in the ESTTA cover sheet regardless of what is contained in any attached statement.
(a) A cancellation proceeding is commenced by filing in the Office a timely petition for cancellation with the required fee.
(b) Any person who believes that he, she or it is or will be damaged by a registration may file a petition, addressed to the Trademark Trial and Appeal Board, for cancellation of the registration in whole or in part. The petition for cancellation need not be verified, but must be signed by the petitioner or the petitioner's attorney, as specified in § 11.1 of this chapter, or other authorized representative, as specified in § 11.14(b) of this chapter. Electronic signatures pursuant to § 2.193(c) are required for petitions submitted electronically via ESTTA.
(c)(1) A petition to cancel a registration must be filed through ESTTA.
(2) In the event that ESTTA is unavailable due to technical problems, or when extraordinary circumstances are present, a petition to cancel may be filed in paper form. A paper petition to cancel a registration must be accompanied by a Petition to the Director under § 2.146, with the fees therefor and the showing required under this paragraph (c). Timeliness of the paper submission, if relevant to a ground asserted in the petition to cancel, will be determined in accordance with §§ 2.195 through 2.198.
(d) The petition for cancellation must be accompanied by the required fee for each party joined as petitioner for each class in the registration(s) for which cancellation is sought (see § 2.6). A petition cannot be filed via ESTTA unless the petition is accompanied by a fee that is sufficient to pay in full for each named petitioner to seek cancellation of the registration(s) in each class specified in the petition. A petition filed in paper form that is not accompanied by a fee sufficient to pay in full for each named petitioner for each class in the registration(s) for which cancellation is sought may not be instituted.
(e) The filing date of a petition for cancellation is the date of electronic receipt in the Office of the petition and required fee. In the rare instances that filing by paper is permitted under these rules, the filing date of a petition for cancellation will be determined in accordance with §§ 2.195 through 2.198.
(a) The petition for cancellation must set forth a short and plain statement showing why the petitioner believes he, she or it is or will be damaged by the registration, state the ground for cancellation, and indicate, to the best of petitioner's knowledge, the name and address, and a current email address(es), of the current owner of the registration. ESTTA requires the petitioner to select relevant grounds for petition to cancel. The required accompanying statement supports and explains the grounds.
(b) When appropriate, petitions for cancellation of different registrations owned by the same party may be joined in a consolidated petition for cancellation. The required fee must be included for each party joined as a petitioner for each class sought to be cancelled in each registration against which the petition for cancellation has been filed.
(a) When a petition for cancellation in proper form (see §§ 2.111 and 2.112) has been filed and the correct fee has been submitted, the Trademark Trial and Appeal Board shall prepare a notice of institution which shall identify the proceeding as a cancellation, number of the proceeding and the registration(s) involved; and shall designate a time, not less than thirty days from the mailing date of the notice, within which an answer must be filed. The notice, which will include a Web link or Web address to access the electronic proceeding record, constitutes service to the registrant of the petition to cancel.
(b) The Board shall forward a copy of the notice to petitioner, as follows:
(1) If the petition for cancellation is transmitted by an attorney, or a written power of attorney is filed, the Board will send the notice to the attorney transmitting the petition for cancellation or to the attorney designated in the power of attorney, provided that person is an “attorney” as defined in § 11.1 of this chapter, to the attorney's email or correspondence address of record for the attorney.
(2) If petitioner is not represented by an attorney in the cancellation proceeding, but petitioner has appointed a domestic representative, the Board will send the notice to the domestic representative, at the email or correspondence address of record for the domestic representative, unless petitioner designates in writing another correspondence address.
(3) If petitioner is not represented by an attorney in the cancellation proceeding, and no domestic representative has been appointed, the Board will send the notice directly to petitioner, at the email or correspondence address of record for petitioner, unless petitioner designates in writing another correspondence address.
(c)(1) The Board shall forward a copy of the notice to the party shown by the records of the Office to be the current owner of the registration(s) sought to be cancelled at the email or address of record for the current owner, except that the Board, in its discretion, may join or substitute as respondent a party who makes a showing of a current ownership interest in such registration(s).
(2) If the respondent has appointed a domestic representative, and such appointment is reflected in the Office's records, the Board will send the notice only to the domestic representative at the email or correspondence address of record for the domestic representative.
(d) When the party alleged by the petitioner, pursuant to § 2.112(a), as the current owner of the registration(s) is not the record owner, a courtesy copy of the notice with a Web link or Web address to access the electronic proceeding record shall be forwarded to the alleged current owner. The alleged current owner may file a motion to be joined or substituted as respondent.
(a) If no answer is filed within the time initially set, or as may later be reset by the Board, the petition may be decided as in case of default. The failure to file a timely answer tolls all deadlines, including the discovery conference, until the issue of default is resolved.
(b)(1) An answer must be filed through ESTTA. In the event that ESTTA is unavailable due to technical problems, or when extraordinary circumstances are present, an answer may be filed in paper form. An answer filed in paper form must be accompanied by a Petition to the Director under § 2.146, with the fees therefor and the showing required under this paragraph (b).
(2) An answer shall state in short and plain terms the respondent's defenses to each claim asserted and shall admit or deny the averments upon which the petitioner relies. If the respondent is without knowledge or information sufficient to form a belief as to the truth of an averment, respondent shall so state and this will have the effect of a denial. Denials may take any of the forms specified in Rule 8(b) of the Federal Rules of Civil Procedure. An answer may contain any defense, including the affirmative defenses of unclean hands, laches, estoppel, acquiescence, fraud, mistake, prior judgment, or any other matter constituting an avoidance or affirmative defense. When pleading special matters, the Federal Rules of Civil Procedure
(3)(i) A defense attacking the validity of any one or more of the registrations pleaded in the petition shall be a compulsory counterclaim if grounds for such counterclaim exist at the time when the answer is filed. If grounds for a counterclaim are known to respondent when the answer to the petition is filed, the counterclaim shall be pleaded with or as part of the answer. If grounds for a counterclaim are learned during the course of the cancellation proceeding, the counterclaim shall be pleaded promptly after the grounds therefor are learned. A counterclaim need not be filed if the claim is the subject of another proceeding between the same parties or anyone in privity therewith; but the party in position of respondent and counterclaim plaintiff must promptly inform the Board, in the context of the primary cancellation proceeding, of the filing of the other proceeding.
(ii) An attack on the validity of a registration pleaded by a petitioner for cancellation will not be heard unless a counterclaim or separate petition is filed to seek the cancellation of such registration.
(iii) The provisions of §§ 2.111 through 2.115, inclusive, shall be applicable to counterclaims. A time, not less than thirty days, will be designated by the Board within which an answer to the counterclaim must be filed. Such response period may be reset as necessary by the Board, for a time period to be determined by the Board.
(iv) The times for pleading, discovery, testimony, briefs, or oral argument may be reset or extended when necessary, upon motion by a party, or as the Board may deem necessary, to enable a party fully to present or meet a counterclaim or separate petition for cancellation of a registration.
(c) The petition for cancellation or counterclaim petition for cancellation may be withdrawn without prejudice before the answer is filed. After the answer is filed, such petition or counterclaim petition may not be withdrawn without prejudice except with the written consent of the registrant or the registrant's attorney or other authorized representative.
(c) The notice of opposition or the petition for cancellation and the answer correspond to the complaint and answer in a court proceeding.
(e) The submission of notices of reliance, declarations and affidavits, as well as the taking of depositions, during the assigned testimony periods correspond to the trial in court proceedings.
(f) Oral hearing, if requested, of arguments on the record and merits corresponds to oral summation in court proceedings.
(g) The Trademark Trial and Appeal Board's standard protective order is automatically imposed in all inter partes proceedings unless the parties, by stipulation approved by the Board, agree to an alternative order, or a motion by a party to use an alternative order is granted by the Board. The standard protective order is available at the Office's Web site. No material disclosed or produced by a party, presented at trial, or filed with the Board, including motions or briefs which discuss such material, shall be treated as confidential or shielded from public view unless designated as protected under the Board's standard protective order, or under an alternative order stipulated to by the parties and approved by the Board, or under an order submitted by motion of a party granted by the Board. The Board may treat as not confidential that material which cannot reasonably be considered confidential, notwithstanding a designation as such by a party.
(c) Proceedings may also be suspended sua sponte by the Board, or, for good cause, upon motion or a stipulation of the parties approved by the Board. Many consented or stipulated motions to suspend are suitable for automatic approval by ESTTA, but the Board retains discretion to condition approval on the party or parties providing necessary information about the status of settlement talks, discovery activities, or trial activities, as may be appropriate.
When a notice sent by the Office to any registrant or applicant is returned to the Office undelivered, including notification to the Office of non-delivery in paper or electronic form, additional notice may be given by publication in the Official Gazette.
(a) Except for the notice of opposition or the petition to cancel, every submission filed in the Office in inter partes cases, including notices of appeal to the courts, must be served upon the other party or parties. Proof of such service must be made before the submission will be considered by the Office. A statement signed by the attorney or other authorized representative, attached to or appearing on the original submission when filed, clearly stating the date and manner in which service was made will be accepted as prima facie proof of service.
(b) Service of submissions filed with the Board and any other papers served on a party not required to be filed with the Board, must be on the attorney or other authorized representative of the party if there be such or on the party if there is no attorney or other authorized representative, and must be made by email, unless otherwise stipulated, or if the serving party can show by written explanation accompanying the submission or paper, or in a subsequent amended certificate of service, that service by email was attempted but could not be made due to technical problems or extraordinary circumstances, then service may be made in any of the following ways:
(1) By delivering a copy of the submission or paper to the person served;
(2) By leaving a copy at the usual place of business of the person served, with someone in the person's employment;
(3) When the person served has no usual place of business, by leaving a copy at the person's residence, with some person of suitable age and discretion who resides there;\
(4) Transmission by the Priority Mail Express® Post Office to Addressee service of the United States Postal Service or by first-class mail, which may also be certified or registered;
(5) Transmission by overnight courier; or
(6) Other forms of electronic transmission.
(c) When service is made by first-class mail, Priority Mail Express®, or overnight courier, the date of mailing or
(d) If a party to an inter partes proceeding is not domiciled in the United States and is not represented by an attorney or other authorized representative located in the United States, none of the parties to the proceeding is eligible to use the service option under paragraph (b)(4) of this section. The party not domiciled in the United States may designate by submission filed in the Office the name and address of a person residing in the United States on whom may be served notices or process in the proceeding. If the party has appointed a domestic representative, official communications of the Office will be addressed to the domestic representative unless the proceeding is being prosecuted by an attorney at law or other qualified person duly authorized under § 11.14(c) of this chapter. If the party has not appointed a domestic representative and the proceeding is not being prosecuted by an attorney at law or other qualified person, the Office will send correspondence directly to the party, unless the party designates in writing another address to which correspondence is to be sent. The mere designation of a domestic representative does not authorize the person designated to prosecute the proceeding unless qualified under § 11.14(a) of this chapter, or qualified under § 11.14(b) of this chapter and authorized under § 2.17(f).
(e) Every submission filed in an inter partes proceeding, and every request for an extension of time to file an opposition, must be signed by the party filing it, or by the party's attorney or other authorized representative, but an unsigned submission will not be refused consideration if a signed copy is submitted to the Office within the time limit set in the notification of this defect by the Office.
(a)
(2)(i) The discovery conference shall occur no later than the opening of the discovery period, and the parties must discuss the subjects set forth in Rule 26(f) of the Federal Rules of Civil Procedure and any subjects set forth in the Board's institution order. A Board Interlocutory Attorney or Administrative Trademark Judge will participate in the conference upon request of any party made after answer but no later than ten days prior to the deadline for the conference, or when the Board deems it useful for the parties to have Board involvement. The participating attorney or judge may expand or reduce the number or nature of subjects to be discussed in the conference as may be deemed appropriate. The discovery period will be set for a period of 180 days.
(ii) Initial disclosures must be made no later than thirty days after the opening of the discovery period.
(iii) Disclosure of expert testimony must occur in the manner and sequence provided in Rule 26(a)(2) of the Federal Rules of Civil Procedure, unless alternate directions have been provided by the Board in an institution order or any subsequent order resetting disclosure, discovery or trial dates. If the expert is retained after the deadline for disclosure of expert testimony, the party must promptly file a motion for leave to use expert testimony. Upon disclosure by any party of plans to use expert testimony, whether before or after the deadline for disclosing expert testimony, the Board, either on its own initiative or on notice from either party of the disclosure of expert testimony, may issue an order regarding expert discovery and/or set a deadline for any other party to disclose plans to use a rebuttal expert.
(iv) The parties may stipulate to a shortening of the discovery period, that there will be no discovery, that the number of discovery requests or depositions be limited, or that reciprocal disclosures be used in place of discovery. Limited extensions of the discovery period may be granted upon stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. If a motion for an extension is denied, the discovery period may remain as originally set or as reset. Disclosure deadlines and obligations may be modified upon written stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board, but the expert disclosure deadline must always be scheduled prior to the close of discovery. If a stipulation or motion for modification is denied, discovery disclosure deadlines may remain as originally set or reset and obligations may remain unaltered.
(v) The parties are not required to prepare or transmit to the Board a written report outlining their discovery conference discussions, unless the parties have agreed to alter disclosure or discovery obligations set forth by these rules or applicable Federal Rules of Civil Procedure, or unless directed to file such a report by a participating Board Interlocutory Attorney or Administrative Trademark Judge.
(3) A party must make its initial disclosures prior to seeking discovery, absent modification of this requirement by a stipulation of the parties approved by the Board, or a motion granted by the Board, or by order of the Board. Discovery depositions must be properly noticed and taken during the discovery period. Interrogatories, requests for production of documents and things, and requests for admission must be served early enough in the discovery period, as originally set or as may have been reset by the Board, so that responses will be due no later than the close of discovery. Responses to interrogatories, requests for production of documents and things, and requests for admission must be served within thirty days from the date of service of such discovery requests. The time to respond may be extended upon stipulation of the parties, or upon motion granted by the Board, or by order of the Board, but the response may not be due later than the close of discovery. The resetting of a party's time to respond to an outstanding request for discovery will not result in the automatic rescheduling of the discovery and/or testimony periods; such dates will be rescheduled only upon stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board.
(b)
(c)
(2) Whenever a foreign party is or will be, during a time set for discovery, present within the United States or any territory which is under the control and jurisdiction of the United States, such party may be deposed by oral examination upon notice by the party seeking discovery. Whenever a foreign party has or will have, during a time set for discovery, an officer, director, managing agent, or other person who consents to testify on its behalf, present within the United States or any territory which is under the control and jurisdiction of the United States, such officer, director, managing agent, or other person who consents to testify in its behalf may be deposed by oral examination upon notice by the party seeking discovery. The party seeking discovery may have one or more officers, directors, managing agents, or other persons who consent to testify on behalf of the adverse party, designated under Rule 30(b)(6) of the Federal Rules of Civil Procedure. The deposition of a person under this paragraph shall be taken in the Federal judicial district where the witness resides or is regularly employed, or, if the witness neither resides nor is regularly employed in a Federal judicial district, where the witness is at the time of the deposition. This paragraph (c)(2) does not preclude the taking of a discovery deposition of a foreign party by any other procedure provided by paragraph (c)(1) of this section.
(d)
(e)
(f)
(2) When a party files a motion for an order to compel initial disclosures, expert testimony disclosure, or discovery, the case will be suspended by the Board with respect to all matters not germane to the motion. After the motion to compel is filed and served, no party should file any paper that is not germane to the motion, except as otherwise specified in the Board's suspension order. Nor may any party serve any additional discovery until the period of suspension is lifted or expires by or under order of the Board. The filing of a motion to compel any disclosure or discovery shall not toll the time for a party to comply with any disclosure requirement or to respond to any outstanding discovery requests or to appear for any noticed discovery deposition. If discovery has closed, however, the parties need not make pretrial disclosures until directed to do so by the Board.
(g)
(h)
(2) If a party fails to make required initial disclosures or expert testimony disclosure, and such party or the party's attorney or other authorized representative informs the party or parties entitled to receive disclosures that required disclosures will not be made, the Board may make any appropriate order, as specified in paragraph (h)(1) of this section. If a party, or an officer, director, or managing agent of a party, or a person designated under Rule 30(b)(6) or 31(a) of the Federal Rules of Civil Procedure to testify on behalf of a party, fails to attend the party's or person's discovery deposition, after being served with proper notice, or fails to provide any response to a set of interrogatories or to a set of requests for production of documents and things, and such party or the party's attorney or other authorized representative informs the party seeking discovery that no response will be made thereto, the Board may make any appropriate order, as specified in paragraph (h)(1) of this section.
(i)
(1) Any motion by a party to determine the sufficiency of an answer or objection, including testing the sufficiency of a general objection on the ground of excessive number, to a request made by that party for an admission must be filed prior to the deadline for pretrial disclosures for the first testimony period, as originally set or as reset. The motion shall include a copy of the request for admission and any exhibits thereto and of the answer or objection. The motion must be supported by a written statement from the moving party showing that such party or the attorney therefor has made a good faith effort, by conference or correspondence, to resolve with the other party or the attorney therefor the issues presented in the motion and has been unable to reach agreement. If issues raised in the motion are subsequently resolved by agreement of the parties, the moving party should inform the Board in writing of the issues in the motion which no longer require adjudication.
(2) When a party files a motion to determine the sufficiency of an answer or objection to a request for an admission, the case will be suspended by the Board with respect to all matters not germane to the motion. After the motion is filed and served, no party should file any paper that is not germane to the motion, except as otherwise specified in the Board's suspension order. Nor may any party serve any additional discovery until the period of suspension is lifted or expires by or under order of the Board. The filing of a motion to determine the sufficiency of an answer or objection to a request for admission shall not toll the time for a party to comply with any disclosure requirement or to respond to any outstanding discovery requests or to appear for any noticed discovery deposition. If discovery has closed, however, the parties need not make pretrial disclosures until directed to do so by the Board.
(j)
(2) Whenever it appears to the Trademark Trial and Appeal Board that questions or issues arising during the
(3) Parties may not make a recording of the conferences referenced in paragraphs (j)(1) and (2) of this section.
(k)
(2) Except as provided in paragraph (k)(1) of this section, the discovery deposition of a witness, whether or not a party, shall not be offered in evidence unless the person whose deposition was taken is, during the testimony period of the party offering the deposition, dead; or out of the United States (unless it appears that the absence of the witness was procured by the party offering the deposition); or unable to testify because of age, illness, infirmity, or imprisonment; or cannot be served with a subpoena to compel attendance at a testimonial deposition; or there is a stipulation by the parties; or upon a showing that such exceptional circumstances exist as to make it desirable, in the interest of justice, to allow the deposition to be used. The use of a discovery deposition by any party under this paragraph will be allowed only by stipulation of the parties approved by the Trademark Trial and Appeal Board, or by order of the Board on motion, which shall be filed when the party makes its pretrial disclosures, unless the motion is based upon a claim that such exceptional circumstances exist as to make it desirable, in the interest of justice, to allow the deposition to be used, even though such deadline has passed, in which case the motion shall be filed promptly after the circumstances claimed to justify use of the deposition became known.
(3)(i) A discovery deposition, an answer to an interrogatory, an admission to a request for admission, or a written initial disclosure, which may be offered in evidence under the provisions of paragraph (k) of this section, may be made of record in the case by filing the deposition or any part thereof with any exhibit to the part that is filed, or a copy of the interrogatory and answer thereto with any exhibit made part of the answer, or a copy of the request for admission and any exhibit thereto and the admission (or a statement that the party from which an admission was requested failed to respond thereto), or a copy of the written initial disclosure, together with a notice of reliance in accordance with § 2.122(g). The notice of reliance and the material submitted thereunder should be filed during the testimony period of the party that files the notice of reliance. An objection made at a discovery deposition by a party answering a question subject to the objection will be considered at final hearing.
(ii) A party that has obtained documents from another party through disclosure or under Rule 34 of the Federal Rules of Civil Procedure may not make the documents of record by notice of reliance alone, except to the extent that they are admissible by notice of reliance under the provisions of § 2.122(e), or the party has obtained an admission or stipulation from the producing party that authenticates the documents.
(4) If only part of a discovery deposition is submitted and made part of the record by a party, an adverse party may introduce under a notice of reliance any other part of the deposition which should in fairness be considered so as to make not misleading what was offered by the submitting party. A notice of reliance filed by an adverse party must be supported by a written statement explaining why the adverse party needs to rely upon each additional part listed in the adverse party's notice, failing which the Board, in its discretion, may refuse to consider the additional parts.
(5) Written disclosures, an answer to an interrogatory, or an admission to a request for admission, may be submitted and made part of the record only by the receiving or inquiring party except that, if fewer than all of the written disclosures, answers to interrogatories, or fewer than all of the admissions, are offered in evidence by the receiving or inquiring party, the disclosing or responding party may introduce under a notice of reliance any other written disclosures, answers to interrogatories, or any other admissions, which should in fairness be considered so as to make not misleading what was offered by the receiving or inquiring party. The notice of reliance filed by the disclosing or responding party must be supported by a written statement explaining why the disclosing or responding party needs to rely upon each of the additional written disclosures or discovery responses listed in the disclosing or responding party's notice, and absent such statement, the Board, in its discretion, may refuse to consider the additional written disclosures or responses.
(6) Paragraph (k) of this section will not be interpreted to preclude reading or use of written disclosures or documents, a discovery deposition, or answer to an interrogatory, or admission as part of the examination or cross-examination of any witness during the testimony period of any party.
(7) When a written disclosure, a discovery deposition, or a part thereof, or an answer to an interrogatory, or an admission, or an authenticated produced document has been made of record by one party in accordance with the provisions of paragraph (k)(3) of this section, it may be referred to by any party for any purpose permitted by the Federal Rules of Evidence.
(8) Written disclosures or disclosed documents, requests for discovery, responses thereto, and materials or depositions obtained through the disclosure or discovery process should not be filed with the Board, except when submitted with a motion relating to disclosure or discovery, or in support of or in response to a motion for summary judgment, or under a notice of reliance, when permitted, during a party's testimony period.
(a) The Trademark Trial and Appeal Board will issue a trial order setting a deadline for each party's required pretrial disclosures and assigning to each party its time for taking testimony and presenting evidence (“testimony period”). No testimony shall be taken or evidence presented except during the times assigned, unless by stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. The deadlines for pretrial disclosures and the testimony periods may be rescheduled by stipulation of the parties approved by the Board, or upon motion granted by the Board, or by order of the Board. If a motion to reschedule any pretrial disclosure deadline and/or testimony period is denied, the pretrial disclosure deadline or testimony period and any subsequent remaining periods may remain as set. The resetting of the
(c) A testimony period which is solely for rebuttal will be set for fifteen days. All other testimony periods will be set for thirty days. The periods may be shortened or extended by stipulation of the parties approved by the Trademark Trial and Appeal Board, or may be extended upon motion granted by the Board, or by order of the Board. If a motion for an extension is denied, the testimony periods and their associated pretrial disclosure deadlines may remain as set.
(d) When parties stipulate to the rescheduling of a deadline for pretrial disclosures and subsequent testimony periods or to the rescheduling of the closing date for discovery and the rescheduling of subsequent deadlines for pretrial disclosures and testimony periods, a stipulation presented in the form used in a trial order, signed by the parties, or a motion in said form signed by one party and including a statement that every other party has agreed thereto, shall be submitted to the Board through ESTTA, with the relevant dates set forth and an express statement that all parties agree to the new dates.
(e) A party need not disclose, prior to its testimony period, any notices of reliance it intends to file during its testimony period. However, no later than fifteen days prior to the opening of each testimony period, or on such alternate schedule as may be provided by order of the Board, the party scheduled to present evidence must disclose the name and, if not previously provided, the telephone number and address of each witness from whom it intends to take testimony, or may take testimony if the need arises, general identifying information about the witness, such as relationship to any party, including job title if employed by a party, or, if neither a party nor related to a party, occupation and job title, a general summary or list of subjects on which the witness is expected to testify, and a general summary or list of the types of documents and things which may be introduced as exhibits during the testimony of the witness. The testimony of a witness may be taken upon oral examination and transcribed, or presented in the form of an affidavit or declaration, as provided in § 2.123. Pretrial disclosure of a witness under this paragraph (e) does not substitute for issuance of a proper notice of examination under § 2.123(c) or § 2.124(b). If a party does not plan to take testimony from any witnesses, it must so state in its pretrial disclosure. When a party fails to make required pretrial disclosures, any adverse party or parties may have remedy by way of a motion to the Board to delay or reset any subsequent pretrial disclosure deadlines and/or testimony periods. A party may move to quash a noticed testimony deposition of a witness not identified or improperly identified in pretrial disclosures before the deposition. When testimony has been presented by affidavit or declaration, but was not covered by an earlier pretrial disclosure, the remedy for any adverse party is the prompt filing of a motion to strike, as provided in §§ 2.123 and 2.124.
(a)
(b)
(2) The allegation in an application for registration, or in a registration, of a date of use is not evidence on behalf of the applicant or registrant; a date of use of a mark must be established by competent evidence. Specimens in the file of an application for registration, or in the file of a registration, are not evidence on behalf of the applicant or registrant unless identified and introduced in evidence as exhibits during the period for the taking of testimony. Statements made in an affidavit or declaration in the file of an application for registration, or in the file of a registration, are not testimony on behalf of the applicant or registrant. Establishing the truth of these or any other matters asserted in the files of these applications and registrations shall be governed by the Federal Rules of Evidence, the relevant provisions of the Federal Rules of Civil Procedure, the relevant provisions of Title 28 of the United States Code, and the provisions of this part.
(c)
(d)
(2) A registration owned by any party to a proceeding may be made of record in the proceeding by that party by appropriate identification and introduction during the taking of testimony or by filing a notice of reliance in accordance with paragraph (g) of this section, which shall be accompanied by a copy (original or photocopy) of the registration prepared and issued by the Office showing both the current status of and current title to the registration, or by a current copy of information from the electronic database records of the Office showing the current status and title of the registration. The notice of reliance shall be filed during the testimony period of the party that files the notice.
(e)
(2) Internet materials may be admitted into evidence under a notice of reliance in accordance with paragraph (g) of this section, in the same manner as a printed publication in general circulation, so long as the date the internet materials were accessed and their source (
(g)
(a)(1) The testimony of witnesses in inter partes cases may be submitted in the form of an affidavit or a declaration pursuant to § 2.20 and in conformance with the Federal Rules of Evidence, filed during the proffering party's testimony period, subject to the right of any adverse party to elect to take and bear the expense of oral cross-examination of that witness as provided under paragraph (c) of this section if such witness is within the jurisdiction of the United States, or conduct cross-examination by written questions as provided in § 2.124 if such witness is outside the jurisdiction of the United States, and the offering party must make that witness available; or taken by deposition upon oral examination as provided by this section; or by deposition upon written questions as provided by § 2.124.
(2) A testimonial deposition taken in a foreign country shall be taken by deposition upon written questions as provided by § 2.124, unless the Board, upon motion for good cause, orders that the deposition be taken by oral examination or by affidavit or declaration, subject to the right of any adverse party to elect to take and bear the expense of cross-examination by written questions of that witness, or the parties so stipulate. If a party serves notice of the taking of a testimonial deposition upon written questions of a witness who is, or will be at the time of the deposition, present within the United States or any territory which is under the control and jurisdiction of the United States, any adverse party may, within twenty days from the date of service of the notice, file a motion with the Trademark Trial and Appeal Board, for good cause, for an order that the deposition be taken by oral examination.
(b)
(c)
(e)
(2) The deposition shall be taken in answer to questions, with the questions and answers recorded in their regular order by the officer, or by some other person (who shall be subject to the provisions of Rule 28 of the Federal Rules of Civil Procedure) in the presence of the officer except when the officer's presence is waived on the record by agreement of the parties. The testimony shall be recorded and transcribed, unless the parties present agree otherwise. Exhibits which are marked and identified at the deposition will be deemed to have been offered into evidence, without any formal offer thereof, unless the intention of the party marking the exhibits is clearly expressed to the contrary.
(3) If pretrial disclosures or the notice of examination of witnesses served pursuant to paragraph (c) of this section are improper or inadequate with respect to any witness, an adverse party may cross-examine that witness under protest while reserving the right to object to the receipt of the testimony in evidence. Promptly after the testimony is completed, the adverse party, to preserve the objection, shall move to strike the testimony from the record, which motion will be decided on the basis of all the relevant circumstances.
(i) A motion to strike the testimony of a witness for lack of proper or adequate pretrial disclosure may seek exclusion of the entire testimony, when there was no pretrial disclosure, or may seek exclusion of that portion of the testimony that was not adequately disclosed in accordance with § 2.121(e).
(ii) A motion to strike the testimony of a witness for lack of proper or adequate notice of examination must request the exclusion of the entire testimony of that witness and not only a part of that testimony.
(4) All objections made at the time of an oral examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections.
(5) When the oral deposition has been transcribed, the deposition transcript shall be carefully read over by the witness or by the officer to the witness, and shall then be signed by the witness in the presence of any officer authorized to administer oaths unless the reading and the signature be waived on the record by agreement of all parties.
(f)
(i) Due administration of the oath by the officer to the witness before the commencement of his or her deposition;
(ii) The name of the person by whom the deposition was taken down, and whether, if not taken down by the officer, it was taken down in his or her presence;
(iii) The presence or absence of the adverse party;
(iv) The place, day, and hour of commencing and taking the deposition;
(v) The fact that the officer was not disqualified as specified in Rule 28 of the Federal Rules of Civil Procedure.
(2) If any of the foregoing requirements in paragraph (f)(1) of this section are waived, the certificate shall so state. The officer shall sign the certificate and affix thereto his or her seal of office, if he or she has such a seal. The party taking the deposition, or its attorney or other authorized representative, shall then promptly file the transcript and exhibits in electronic form using ESTTA. If the nature of an exhibit precludes electronic transmission via ESTTA, it shall be submitted by mail by the party taking the deposition, or its attorney or other authorized representative.
(g)
(2) Exhibits must be numbered or lettered consecutively and each must be marked with the number and title of the case and the name of the party offering the exhibit. Entry and consideration may be refused to improperly marked exhibits.
(3) Each deposition must contain a word index and an index of the names of the witnesses, giving the pages where the words appear in the deposition and where witness examination and cross-examination begin, and an index of the exhibits, briefly describing their nature and giving the pages at which they are introduced and offered in evidence.
(h)
(i)
(j)
(k)
(b) * * *
(2) A party desiring to take a discovery deposition upon written questions shall serve notice thereof upon each adverse party and shall file a copy of the notice, but not copies of the questions, with the Board. The notice shall state the name and address, if known, of the person whose deposition is to be taken. If the name of the person is not known, a general description sufficient to identify the witness or the particular class or group to which he or she belongs shall be stated in the notice, and the party from whom the discovery deposition is to be taken shall designate one or more persons to be deposed in the same manner as is provided by Rule 30(b)(6) of the Federal Rules of Civil Procedure.
(3) A party desiring to take cross-examination, by written questions, of a witness who has provided testimony by affidavit or declaration shall serve notice thereof upon each adverse party and shall file a copy of the notice, but not copies of the questions, with the Board.
(d)(1) Every notice served on any adverse party under the provisions of paragraph (b) of this section, for the taking of direct testimony, shall be accompanied by the written questions to be propounded on behalf of the party who proposes to take the deposition. Every notice served on any adverse party under the provisions of paragraph (b)(3) of this section, for the taking of cross-examination, shall be accompanied by the written questions to be propounded on behalf of the party who proposes to take the cross-examination. Within twenty days from the date of service of the notice of taking direct testimony, any adverse party may serve cross questions upon the party who proposes to take the deposition. Any party who serves cross questions, whether in response to direct examination questions or under paragraph (b)(3) of this section, shall also serve every other adverse party. Within ten days from the date of service of the cross questions, the party who proposes to take the deposition, or who earlier offered testimony of the witness by affidavit or declaration, may serve redirect questions on every adverse party. Within ten days from the date of service of the redirect questions, any party who served cross questions may serve recross questions upon the party who proposes to take the deposition; any party who serves recross questions
(3) Service of written questions, responses, and cross-examination questions shall be in accordance with § 2.119(b).
(f) The party who took the deposition shall promptly serve a copy of the transcript, copies of documentary exhibits, and duplicates or photographs of physical exhibits on every adverse party. It is the responsibility of the party who takes the deposition to assure that the transcript is correct (see § 2.125(b)). If the deposition is a discovery deposition, it may be made of record as provided by § 2.120(k). If the deposition is a testimonial deposition, the original, together with copies of documentary exhibits and duplicates or photographs of physical exhibits, shall be filed promptly with the Trademark Trial and Appeal Board.
(a) One copy of the declaration or affidavit prepared in accordance with § 2.123, together with copies of documentary exhibits and duplicates or photographs of physical exhibits, shall be served on each adverse party at the time the declaration or affidavit is submitted to the Trademark Trial and Appeal Board during the assigned testimony period.
(b) One copy of the transcript of each testimony deposition taken in accordance with § 2.123 or § 2.124, together with copies of documentary exhibits and duplicates or photographs of physical exhibits, shall be served on each adverse party within thirty days after completion of the taking of that testimony. If the transcript with exhibits is not served on each adverse party within thirty days or within an extension of time for the purpose, any adverse party which was not served may have remedy by way of a motion to the Trademark Trial and Appeal Board to reset such adverse party's testimony and/or briefing periods, as may be appropriate. If the deposing party fails to serve a copy of the transcript with exhibits on an adverse party after having been ordered to do so by the Board, the Board, in its discretion, may strike the deposition, or enter judgment as by default against the deposing party, or take any such other action as may be deemed appropriate.
(c) The party who takes testimony is responsible for having all typographical errors in the transcript and all errors of arrangement, indexing and form of the transcript corrected, on notice to each adverse party, prior to the filing of one certified transcript with the Trademark Trial and Appeal Board. The party who takes testimony is responsible for serving on each adverse party one copy of the corrected transcript or, if reasonably feasible, corrected pages to be inserted into the transcript previously served.
(d) One certified transcript and exhibits shall be filed with the Trademark Trial and Appeal Board. Notice of such filing shall be served on each adverse party and a copy of each notice shall be filed with the Board.
(e) Each transcript shall comply with § 2.123(g) with respect to arrangement, indexing and form.
(f) Upon motion by any party, for good cause, the Trademark Trial and Appeal Board may order that any part of an affidavit or declaration or a deposition transcript or any exhibits that directly disclose any trade secret or other confidential research, development, or commercial information may be filed under seal and kept confidential under the provisions of § 2.27(e). If any party or any attorney or agent of a party fails to comply with an order made under this paragraph, the Board may impose any of the sanctions authorized by § 2.120(h).
(a) Submissions must be made to the Trademark Trial and Appeal Board via ESTTA.
(1) Text in an electronic submission must be filed in at least 11-point type and double-spaced.
(2) Exhibits pertaining to an electronic submission must be made electronically as an attachment to the submission and must be clear and legible.
(b) In the event that ESTTA is unavailable due to technical problems, or when extraordinary circumstances are present, submissions may be filed in paper form. All submissions in paper form, except the extensions of time to file a notice of opposition, the notice of opposition, the petition to cancel, or answers thereto (
(1) A paper submission must be printed in at least 11-point type and double-spaced, with text on one side only of each sheet;
(2) A paper submission must be 8 to 8.5 inches (20.3 to 21.6 cm.) wide and 11 to 11.69 inches (27.9 to 29.7 cm.) long, and contain no tabs or other such devices extending beyond the edges of the paper;
(3) If a paper submission contains dividers, the dividers must not have any extruding tabs or other devices, and must be on the same size and weight paper as the submission;
(4) A paper submission must not be stapled or bound;
(5) All pages of a paper submission must be numbered and exhibits shall be identified in the manner prescribed in § 2.123(g)(2);
(6) Exhibits pertaining to a paper submission must be filed on paper and comply with the requirements for a paper submission.
(c) To be handled as confidential, submissions to the Trademark Trial and Appeal Board that are confidential in whole or part pursuant to § 2.125(e) must be submitted using the “Confidential” selection available in ESTTA or, where appropriate, under a separate paper cover. Both the submission and its cover must be marked confidential and must identify the case number and the parties. A copy of the submission for public viewing with the confidential portions redacted must be submitted concurrently.
(a) Every motion must be submitted in written form and must meet the requirements prescribed in § 2.126. It shall contain a full statement of the grounds, and shall embody or be accompanied by a brief. Except as provided in paragraph (e)(1) of this section, a brief in response to a motion shall be filed within twenty days from the date of service of the motion unless another time is specified by the Trademark Trial and Appeal Board, or the time is extended by stipulation of the parties approved by the Board, or upon motion granted by the Board, or upon order of the Board. If a motion for an extension is denied, the time for
(b) Any request for reconsideration or modification of an order or decision issued on a motion must be filed within one month from the date thereof. A brief in response must be filed within twenty days from the date of service of the request.
(c) Interlocutory motions, requests, conceded matters, and other matters not actually or potentially dispositive of a proceeding may be acted upon by a single Administrative Trademark Judge of the Trademark Trial and Appeal Board, or by an Interlocutory Attorney or Paralegal of the Board to whom authority to act has been delegated, or by ESTTA. Motions disposed of by orders entitled “By the Trademark Trial and Appeal Board” have the same legal effect as orders by a panel of three Administrative Trademark Judges of the Board.
(d) When any party timely files a potentially dispositive motion, including, but not limited to, a motion to dismiss, a motion for judgment on the pleadings, or a motion for summary judgment, the case is suspended by the Trademark Trial and Appeal Board with respect to all matters not germane to the motion and no party should file any paper which is not germane to the motion except as otherwise may be specified in a Board order. If the case is not disposed of as a result of the motion, proceedings will be resumed pursuant to an order of the Board when the motion is decided.
(e)(1) A party may not file a motion for summary judgment until the party has made its initial disclosures, except for a motion asserting claim or issue preclusion or lack of jurisdiction by the Trademark Trial and Appeal Board. A motion for summary judgment must be filed prior to the deadline for pretrial disclosures for the first testimony period, as originally set or as reset. A motion under Rule 56(d) of the Federal Rules of Civil Procedure, if filed in response to a motion for summary judgment, shall be filed within thirty days from the date of service of the summary judgment motion. The time for filing a motion under Rule 56(d) will not be extended or reopened. If no motion under Rule 56(d) is filed, a brief in response to the motion for summary judgment shall be filed within thirty days from the date of service of the motion unless the time is extended by stipulation of the parties approved by the Board, or upon motion granted by the Board, or upon order of the Board. If a motion for an extension is denied, the time for responding to the motion for summary judgment may remain as specified under this section. A reply brief, if filed, shall be filed within twenty days from the date of service of the brief in response to the motion. The time for filing a reply brief will not be extended or reopened. The Board will consider no further papers in support of or in opposition to a motion for summary judgment.
(2) For purposes of summary judgment only, the Board will consider any of the following, if a copy is provided with the party's brief on the summary judgment motion: Written disclosures or disclosed documents, a discovery deposition or any part thereof with any exhibit to the part that is filed, an interrogatory and answer thereto with any exhibit made part of the answer, a request for production and the documents or things produced in response thereto, or a request for admission and any exhibit thereto and the admission (or a statement that the party from which an admission was requested failed to respond thereto). If any motion for summary judgment is denied, the parties may stipulate that the materials submitted with briefs on the motion be considered at trial as trial evidence, which may be supplemented by additional evidence during trial.
(a) * * *
(3) When a party in the position of plaintiff fails to file a main brief, an order may be issued allowing plaintiff until a set time, not less than fifteen days, in which to show cause why the Board should not treat such failure as a concession of the case. If plaintiff fails to file a response to the order, or files a response indicating that plaintiff has lost interest in the case, judgment may be entered against plaintiff. If a plaintiff files a response to the order showing good cause, but does not have any evidence of record and does not move to reopen its testimony period and make a showing of excusable neglect sufficient to support such reopening, judgment may be entered against plaintiff for failure to take testimony or submit any other evidence.
(b) Briefs must be submitted in written form and must meet the requirements prescribed in § 2.126. Each brief shall contain an alphabetical index of cited cases. Without prior leave of the Trademark Trial and Appeal Board, a main brief on the case shall not exceed fifty-five pages in length in its entirety, including the table of contents, index of cases, description of the record, statement of the issues, recitation of the facts, argument, and summary; and a reply brief shall not exceed twenty-five pages in its entirety. Evidentiary objections that may properly be raised in a party's brief on the case may instead be raised in an appendix or by way of a separate statement of objections. The appendix or separate statement is not included within the page limit. Any brief beyond the page limits and any brief with attachments outside the stated requirements may not be considered by the Board.
(a) If a party desires to have an oral argument at final hearing, the party shall request such argument by a separate notice filed not later than ten days after the due date for the filing of the last reply brief in the proceeding. Oral arguments will be heard by at least three Administrative Trademark Judges or other statutory members of the Trademark Trial and Appeal Board at the time specified in the notice of hearing. If any party appears at the specified time, that party will be heard. Parties and members of the Board may attend in person or, at the discretion of the Board, remotely. If the Board is prevented from hearing the case at the specified time, a new hearing date will be set. Unless otherwise permitted, oral arguments in an inter partes case will be limited to thirty minutes for each party. A party in the position of plaintiff may
(b) The date or time of a hearing may be reset, so far as is convenient and proper, to meet the wishes of the parties and their attorneys or other authorized representatives. The Board may, however, deny a request to reset a hearing date for lack of good cause or if multiple requests for rescheduling have been filed.
(c) Any request for rehearing or reconsideration or modification of a decision issued after final hearing must be filed within one month from the date of the decision. A brief in response must be filed within twenty days from the date of service of the request. The times specified may be extended by order of the Trademark Trial and Appeal Board on motion for good cause.
If, while an inter partes proceeding involving an application under section 1 or 44 of the Act is pending, facts appear which, in the opinion of the examining attorney, render the mark in the application unregistrable, the examining attorney should request that the Board remand the application. The Board may suspend the proceeding and remand the application to the trademark examining attorney for an ex parte determination of the question of registrability. A copy of the trademark examining attorney's final action will be furnished to the parties to the inter partes proceeding following the final determination of registrability by the trademark examining attorney or the Board on appeal. The Board will consider the application for such further inter partes action as may be appropriate.
If, during an inter partes proceeding involving an application under section 1 or 44 of the Act, facts are disclosed which appear to render the mark unregistrable, but such matter has not been tried under the pleadings as filed by the parties or as they might be deemed to be amended under Rule 15(b) of the Federal Rules of Civil Procedure to conform to the evidence, the Trademark Trial and Appeal Board, in lieu of determining the matter in the decision on the proceeding, may remand the application to the trademark examining attorney for reexamination in the event the applicant ultimately prevails in the inter partes proceeding. Upon remand, the trademark examining attorney shall reexamine the application in light of the matter referenced by the Board. If, upon reexamination, the trademark examining attorney finally refuses registration to the applicant, an appeal may be taken as provided by §§ 2.141 and 2.142.
(a) If the time for taking testimony by any party in the position of plaintiff has expired and it is clear to the Board from the proceeding record that such party has not taken testimony or offered any other evidence, the Board may grant judgment for the defendant. Also, any party in the position of defendant may, without waiving the right to offer evidence in the event the motion is denied, move for dismissal on the ground of the failure of the plaintiff to prosecute. The party in the position of plaintiff shall have twenty days from the date of service of the motion to show cause why judgment should not be rendered dismissing the case. In the absence of a showing of excusable neglect, judgment may be rendered against the party in the position of plaintiff. If the motion is denied, testimony periods will be reset for the party in the position of defendant and for rebuttal.
(b) If no evidence other than Office records showing the current status and title of plaintiff's pleaded registration(s) is offered by any party in the position of plaintiff, any party in the position of defendant may, without waiving the right to offer evidence in the event the motion is denied, move for dismissal on the ground that upon the law and the facts the party in the position of plaintiff has shown no right to relief. The party in the position of plaintiff shall have twenty days from the date of service of the motion to file a brief in response to the motion. The Trademark Trial and Appeal Board may render judgment against the party in the position of plaintiff, or the Board may decline to render judgment until all testimony periods have passed. If judgment is not rendered on the motion to dismiss, testimony periods will be reset for the party in the position of defendant and for rebuttal.
(b) After the commencement of a cancellation proceeding, if it comes to the attention of the Trademark Trial and Appeal Board that the respondent has permitted its involved registration to be cancelled under section 8 or section 71 of the Act of 1946, or has failed to renew its involved registration under section 9 of the Act of 1946, or has allowed its registered extension of protection to expire under section 70(b) of the Act of 1946, an order may be issued allowing respondent until a set time, not less than fifteen days, in which to show cause why such cancellation, failure to renew, or expiration should not be deemed to be the equivalent of a cancellation by request of respondent without the consent of the adverse party and should not result in entry of judgment against respondent as provided by paragraph (a) of this section. In the absence of a showing of good and sufficient cause, judgment may be entered against respondent as provided by paragraph (a) of this section.
After the Board has issued its decision in an opposition, cancellation or concurrent use proceeding, and after the time for filing any appeal of the decision has expired, or any appeal that was filed has been decided and the Board's decision affirmed, the proceeding will be terminated by the Board. On termination of an opposition, cancellation or concurrent use proceeding, if the judgment is not adverse to the applicant or registrant, the subject application returns to the status it had before the institution of the proceeding and the otherwise appropriate status of the subject registration is unaffected by the proceeding. If the judgment is adverse to the applicant or registrant, the application stands refused or the registration will be cancelled in whole or in part without further action and all proceedings thereon are considered terminated.
(b)(1) The brief of appellant shall be filed within sixty days from the date of appeal. If the brief is not filed within the time allowed, the appeal may be dismissed. The examining attorney shall, within sixty days after the brief of appellant is sent to the examining
(2) Briefs must meet the requirements prescribed in § 2.126, except examining attorney submissions need not be filed through ESTTA. Without prior leave of the Trademark Trial and Appeal Board, a brief shall not exceed twenty-five pages in length in its entirety, including the table of contents, index of cases, description of the record, statement of the issues, recitation of the facts, argument, and summary. A reply brief from the appellant, if any, shall not exceed ten pages in length in its entirety. Unless authorized by the Board, no further briefs are permitted.
(3) Citation to evidence in briefs should be to the documents in the electronic application record by date, the name of the paper under which the evidence was submitted, and the page number in the electronic record.
(c) All requirements made by the examining attorney and not the subject of appeal shall be complied with prior to the filing of an appeal, and the statement of issues in the brief should note such compliance.
(d) The record in the application should be complete prior to the filing of an appeal. Evidence should not be filed with the Board after the filing of a notice of appeal. If the appellant or the examining attorney desires to introduce additional evidence after an appeal is filed, the appellant or the examining attorney should submit a request to the Board to suspend the appeal and to remand the application for further examination.
(e)(1) If the appellant desires an oral hearing, a request should be made by a separate notice filed not later than ten days after the due date for a reply brief. Oral argument will be heard by at least three Administrative Trademark Judges or other statutory members of the Trademark Trial and Appeal Board at the time specified in the notice of hearing, which may be reset if the Board is prevented from hearing the argument at the specified time or, so far as is convenient and proper, to meet the wish of the appellant or the appellant's attorney or other authorized representative. Appellants, examining attorneys, and members of the Board may attend in person or, at the discretion of the Board, remotely.
(2) If the appellant requests an oral argument, the examining attorney who issued the refusal of registration or the requirement from which the appeal is taken, or in lieu thereof another examining attorney as designated by a supervisory or managing attorney, shall present an oral argument. If no request for an oral hearing is made by the appellant, the appeal will be decided on the record and briefs.
(3) Oral argument will be limited to twenty minutes by the appellant and ten minutes by the examining attorney. The appellant may reserve part of the time allowed for oral argument to present a rebuttal argument.
(f)(1) If, during an appeal from a refusal of registration, it appears to the Trademark Trial and Appeal Board that an issue not previously raised may render the mark of the appellant unregistrable, the Board may suspend the appeal and remand the application to the examining attorney for further examination to be completed within the time set by the Board.
(2) If the further examination does not result in an additional ground for refusal of registration, the examining attorney shall promptly return the application to the Board, for resumption of the appeal, with a written statement that further examination did not result in an additional ground for refusal of registration.
(3) If the further examination does result in an additional ground for refusal of registration, the examining attorney and appellant shall proceed as provided by §§ 2.61, 2.62, and 2.63. If the ground for refusal is made final, the examining attorney shall return the application to the Board, which shall thereupon issue an order allowing the appellant sixty days from the date of the order to file a supplemental brief limited to the additional ground for the refusal of registration. If the supplemental brief is not filed by the appellant within the time allowed, the appeal may be dismissed.
(4) If the supplemental brief of the appellant is filed, the examining attorney shall, within sixty days after the supplemental brief of the appellant is sent to the examining attorney, file with the Board a written brief answering the supplemental brief of appellant and shall email or mail a copy of the brief to the appellant. The appellant may file a reply brief within twenty days from the date of mailing of the brief of the examining attorney.
(6) If, during an appeal from a refusal of registration, it appears to the examining attorney that an issue not involved in the appeal may render the mark of the appellant unregistrable, the examining attorney may, by written request, ask the Board to suspend the appeal and to remand the application to the examining attorney for further examination. If the request is granted, the examining attorney and appellant shall proceed as provided by §§ 2.61, 2.62, and 2.63. After the additional ground for refusal of registration has been withdrawn or made final, the examining attorney shall return the application to the Board, which shall resume proceedings in the appeal and take further appropriate action with respect thereto.
(a)
(2) In all appeals under section 21(a), the appellant must take the following steps:
(i) File the notice of appeal with the Director, addressed to the Office of the General Counsel, as provided in § 104.2 of this chapter;
(ii) File a copy of the notice of appeal with the Trademark Trial and Appeal Board via ESTTA; and
(iii) Comply with the requirements of the Federal Rules of Appellate Procedure and Rules for the United States Court of Appeals for the Federal Circuit, including serving the requisite number of copies on the Court and paying the requisite fee for the appeal.
(3)
(ii) In inter partes proceedings, the notice of appeal must be served as provided in § 2.119.
(b)
(2) If an adverse party to an appeal taken to the United States Court of Appeals for the Federal Circuit by a defeated party in an inter partes proceeding elects to have all further review proceedings conducted under section 21(b) of the Act, that party must take the following steps:
(i) File a notice of election with the Director, addressed to the Office of the General Counsel, as provided in § 104.2 of this chapter;
(ii) File a copy of the notice of election with the Trademark Trial and Appeal Board via ESTTA; and
(iii) Serve the notice of election as provided in § 2.119.
(c)
(2) Any applicant or registrant in an ex parte case who seeks remedy by civil action under section 21(b) of the Act must serve the summons and complaint pursuant to Rule 4(i) of the Federal Rules of Civil Procedure with the copy to the Director addressed to the Office of the General Counsel as provided in § 104.2 of this chapter. A copy of the complaint must also be filed with the Trademark Trial and Appeal Board via ESTTA.
(3) The party initiating an action for review of a Board decision in an inter partes case under section 21(b) of the Act must file notice thereof with the Trademark Trial and Appeal Board via ESTTA no later than five business days after filing the complaint in the district court. The notice must identify the civil action with particularity by providing the case name, case number, and court in which it was filed. A copy of the complaint may be filed with the notice. Failure to file the required notice can result in termination of the Board proceeding and further action within the United States Patent and Trademark Office consistent with the final Board decision.
(d)
(2)
(3)
(4)
(ii)
(e)
(i) Requested before the expiration of the period for filing an appeal or commencing a civil action, and upon a showing of good cause; or
(ii) Requested after the expiration of the period for filing an appeal or commencing a civil action, and upon a showing that the failure to act was the result of excusable neglect.
(2) The request must be filed as provided in § 104.2 of this chapter and addressed to the attention of the Office of the Solicitor. A copy of the request should also be filed with the Trademark Trial and Appeal Board via ESTTA.
(a)
(b)
(c)
All business with the Office should be transacted in writing. The personal appearance of applicants or their representatives at the Office is unnecessary. The action of the Office will be based exclusively on the written record. No attention will be paid to any alleged oral promise, stipulation, or understanding in relation to which there is disagreement or doubt. The Office encourages parties to file documents through TEAS wherever possible, and mandates that documents in proceedings before the Trademark Trial and Appeal Board be filed through ESTTA.
(d) * * *
(3) Correspondence to be filed with the Trademark Trial and Appeal Board;
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•
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(a)
(b)
(c)
(a)
(b)
(c)
(a)
(b)
(c)
(b) This memorandum shall be implemented consistent with applicable law, and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The Director of OPM is hereby authorized and directed to publish this memorandum in the
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 |