81_FR_199
Page Range | 70923-71323 | |
FR Document |
Page and Subject | |
---|---|
81 FR 71113 - Government in the Sunshine Act Meeting Notice | |
81 FR 71123 - Sunshine Act Meeting; Additional Item | |
81 FR 71095 - Sunshine Act Meeting | |
81 FR 71043 - Sunshine Act Meeting | |
81 FR 71181 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders | |
81 FR 71166 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders | |
81 FR 71166 - Agency Information Collection Activities; Extension of an Approved Information Collection: Designation of Agents, Motor Carriers, Brokers and Freight Forwarders | |
81 FR 71173 - Qualification of Drivers; Exemption Applications; Vision | |
81 FR 71095 - Sunshine Act Notice | |
81 FR 71179 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders | |
81 FR 71178 - Agency Information Collection Activities; Extension of a Currently Approved Information Collection Request: Unified Registration System, FMCSA Registration/Updates. | |
81 FR 71176 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders | |
81 FR 70970 - Isofetamid; Pesticide Tolerances for Emergency Exemptions | |
81 FR 71171 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders | |
81 FR 71168 - Agency Information Collection Activities; Extension of an Approved Information Collection: Training Certification for Drivers of Longer Combination Vehicles | |
81 FR 71169 - Motor Carrier Safety Advisory Committee (MCSAC) and Medical Review Board (MRB) Meetings: Public Meetings | |
81 FR 71199 - Designation of Four Individuals and Nine Entities Pursuant to Executive Order 13581, “Blocking Property of Transnational Criminal Organizations” | |
81 FR 71002 - Amendments To Implement Grants Provisions of the Fixing America's Surface Transportation Act | |
81 FR 71164 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders | |
81 FR 71170 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders | |
81 FR 71016 - General Technical, Organizational, Conforming, and Correcting Amendments to the Federal Motor Carrier Safety Regulations; Correction | |
81 FR 71157 - Mississippi Disaster # MS-00092 | |
81 FR 71077 - Fisheries of the Northeastern United States; Atlantic Surfclam and Ocean Quahog Fisheries; Notice That Vendor Will Provide 2017 Cage Tags | |
81 FR 71076 - Atlantic Highly Migratory Species; Essential Fish Habitat | |
81 FR 71157 - Iowa Disaster #IA-00068 | |
81 FR 70980 - Medicare Program; Explanation of FY 2004 Outlier Fixed-Loss Threshold as Required by Court Rulings; Correction | |
81 FR 71093 - Board of Scientific Counselors Executive Committee; Notification of Public Teleconference and Public Comment | |
81 FR 70942 - Safety Zones; San Francisco, CA | |
81 FR 71093 - Board of Scientific Counselors (BOSC); Sustainable and Healthy Communities Subcommittee Meeting-November 2016 | |
81 FR 71100 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
81 FR 71161 - New Orleans Public Belt Railroad-Temporary Trackage Rights Exemption-Illinois Central Railroad Company | |
81 FR 71057 - Narrow Woven Ribbons With Woven Selvedge From Taiwan; Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2014-2015 | |
81 FR 71044 - Notice of Availability of a Draft Programmatic Environmental Impact Statement for the South Region of the Nationwide Public Safety Broadband Network and Notice of Public Meetings | |
81 FR 71088 - Membership of the Performance Review Board | |
81 FR 71048 - United States Investment Advisory Council: Meeting of the United States Investment Advisory Council | |
81 FR 71094 - Environmental Impact Statements; Notice of Availability | |
81 FR 71025 - Certain Transfers of Property to Regulated Investment Companies [RICs] and Real Estate Investment Trusts [REITs]; Hearing | |
81 FR 71045 - Foreign-Trade Zone (FTZ) 277-Western Maricopa County, Arizona; Notification of Proposed Production Activity; IRIS USA, Inc. (Plastic Household Storage/Organizational Containers); Surprise, Arizona | |
81 FR 71087 - Procurement List; Deletions | |
81 FR 71086 - Procurement List Proposed Deletions | |
81 FR 71159 - Department of State Performance Review Board Members | |
81 FR 71158 - Certification Pursuant to Section 7045(A)(3)(B) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2016 | |
81 FR 71089 - Accrediting Agencies Under Review for Recognition by the U.S. Secretary of Education | |
81 FR 71088 - Agency Information Collection Activities; Comment Request; NPEFS 2016-2018: Common Core of Data (CCD) National Public Education Financial Survey | |
81 FR 71163 - Notice of Availability of the Federal Aviation Administration Record of Decision and Adoption of Department of Navy's Final Environmental Impact Statement for Military Readiness Activities at the Naval Weapons Systems Training Facility Boardman, Oregon | |
81 FR 70931 - IFR Altitudes; Miscellaneous Amendments | |
81 FR 71117 - Conduct of Operations | |
81 FR 71159 - Soo Line Railroad Company-Abandonment of Trackage Located in Burleigh County, N.D. | |
81 FR 71116 - Advisory Committee on Reactor Safeguards; Meeting of the ACRS Subcommittee on Metallurgy & Reactor Fuels; Cancellation of the October 21, 2016, ACRS Subcommittee Meeting | |
81 FR 71090 - William B. Ruger, Jr.; Notice of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of the Traditional Licensing Process | |
81 FR 71092 - Aclara Meters, LLC; Notice of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of the Traditional Licensing Process | |
81 FR 71091 - Puerto Rico Electric Power Authority; Notice of Intent To File License Application, Filing of Pre-Application Document, Approving Use of the Traditional Licensing Process | |
81 FR 71091 - Notice of Commission Staff Attendance | |
81 FR 70935 - Rules and Regulations Under the Hobby Protection Act | |
81 FR 71095 - CentraCare Health System; Analysis To Aid Public Comment | |
81 FR 71086 - New England Fishery Management Council; Public Meeting | |
81 FR 71084 - New England Fishery Management Council; Public Meeting | |
81 FR 71160 - The Indiana Rail Road Company-Trackage Rights Exemption-CSX Transportation, Inc. | |
81 FR 71085 - New England Fishery Management Council; Public Meeting | |
81 FR 71119 - In the Matter of Power Resources, Inc. | |
81 FR 71159 - Elkhart & Western Railroad Co.-Amended Lease and Operation Exemption Containing Interchange Commitment-Norfolk Southern Railway Company | |
81 FR 70923 - Energy Conservation Program: Test Procedures for Portable Air Conditioners; Correction | |
81 FR 71040 - New Mexico Resource Advisory Committee; Notice of Meeting | |
81 FR 71017 - Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meetings for the Circulator Pumps Working Group To Negotiate a Notice of Proposed Rulemaking (NOPR) for Energy Conservation Standards and Test Procedures | |
81 FR 71183 - Notice of Rights and Protections Available Under the Federal Antidiscrimination and Whistleblower Protection Laws | |
81 FR 71185 - Guidance on State Freight Plans and State Freight Advisory Committees | |
81 FR 71161 - WRL, LLC-Acquisition Exemption-City of Tacoma, Department of Public Works | |
81 FR 71116 - Site Characteristics and Site Parameters | |
81 FR 71019 - Electronic Notice of Liquidation | |
81 FR 71182 - Notice of Receipt of Petition for Decision That Nonconforming Model Year 2008 Chevrolet Silverado Trucks are Eligible for Importation | |
81 FR 71039 - Fremont-Winema National Forest; Bly and Chiloquin Ranger Districts; Oregon; East Hills Project Environmental Impact Statement | |
81 FR 71112 - Filing of Plats of Survey, Nebraska | |
81 FR 71164 - Notice of Funding Opportunity for Accelerated Innovation Deployment Demonstration | |
81 FR 71078 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Maintenance, Repair, and Decommissioning of a Liquefied Natural Gas Facility off Massachusetts | |
81 FR 71085 - Submission for OMB Review; Comment Request | |
81 FR 71116 - Advisory Committee for International Science and Engineering; Notice of Meeting | |
81 FR 71099 - Agency Forms Undergoing Paperwork Reduction Act Review | |
81 FR 71098 - Agency Forms Undergoing Paperwork Reduction Act Review | |
81 FR 71108 - Agency Information Collection Activities: Proposed Collection: Public Comment Request; Evaluation and Initial Assessment of HRSA Teaching Health Centers | |
81 FR 71150 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing of Partial Amendment Nos. 1 and 3, and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Partial Amendment Nos. 1 and 3, to System Functionality Necessary To Implement the Regulation NMS Plan To Implement a Tick Size Pilot Program | |
81 FR 71122 - Destra Capital Advisors LLC, et al.; Notice of Application | |
81 FR 71129 - The Bank of New York Mellon Trust Company, National Association and The Bank of New York Mellon; Notice of Application | |
81 FR 71127 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Amending NYSE Arca Equities Rule 7.35P To Provide for Widened Price Collar Thresholds for the Core Open Auction on Volatile Trading Days | |
81 FR 71146 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use of Bats BZX Exchange, Inc. | |
81 FR 71131 - Self-Regulatory Organizations; Miami International Securities Exchange, LLC; Order Approving a Proposed Rule Change To Adopt New Rules To Govern the Trading of Complex Orders | |
81 FR 71153 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing of Proposed Rule Change To Delete Outdated or Unnecessary Rule Language | |
81 FR 71123 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing of Partial Amendment Nos. 1, 2 and 3, and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Partial Amendment Nos. 1, 2 and 3, to System Functionality Necessary to Implement the Regulation NMS Plan To Implement a Tick Size Pilot Program | |
81 FR 71143 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Partial Amendment Nos. 1, 2 and 3, and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Partial Amendment Nos. 1, 2 and 3, to System Functionality Necessary To Implement the Regulation NMS Plan To Implement a Tick Size Pilot Program | |
81 FR 71041 - Notice of Availability of the Mountain Valley Pipeline Project and Equitrans Expansion Project Draft Environmental Impact Statement and the USFS Draft Associated Land and Resource Management Plan Amendments | |
81 FR 70933 - Amendments to the Export Administration Regulations: Reporting Requirements Optional Electronic Filing of Reports of Requests for Restrictive Trade Practice or Boycott | |
81 FR 71157 - The Entire United States and U.S. Territories | |
81 FR 71104 - Submission for OMB Review; Comment Request | |
81 FR 71042 - Pacific Northwest National Scenic Trail Advisory Council | |
81 FR 71158 - North Carolina Disaster #NC-00079 | |
81 FR 71156 - Florida Disaster Number FL-00119 | |
81 FR 71200 - Office of the General Counsel; Appointment of Members of the Legal Division to the Performance Review Board, Internal Revenue Service | |
81 FR 71103 - Submission for OMB Review; Comment Request | |
81 FR 71046 - Certain Lined Paper Products From India: Preliminary Results of Antidumping Duty Administrative Review; 2014-2015 | |
81 FR 71200 - Appointment of Members of the Legal Division to the Performance Review Board, Internal Revenue Service | |
81 FR 71068 - Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2014-2015 | |
81 FR 71199 - Proposed Collection; Comment Request for Revenue Procedure 2016-30 | |
81 FR 71043 - Proposed Information Collection; Comment Request; Questionnaire for Building Permit Official | |
81 FR 71049 - Phosphor Copper From the Republic of Korea: Affirmative Preliminary Determination of Sales at Less Than Fair Value, Negative Preliminary Determination of Critical Circumstances | |
81 FR 70987 - Pipeline Safety: Expanding the Use of Excess Flow Valves in Gas Distribution Systems to Applications Other Than Single-Family Residences | |
81 FR 71104 - Advisory Committee; Dermatologic and Ophthalmic Drugs Advisory Committee, Renewal | |
81 FR 71051 - Truck and Bus Tires From the People's Republic of China: Amended Preliminary Affirmative Determination of Sales at Less Than Fair Value | |
81 FR 71101 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
81 FR 71102 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
81 FR 71110 - Submission for OMB Review; 30-Day Comment Request NCI's Center for Cancer Training Application Form for Graduate Student Recruitment Program (National Cancer Institute) | |
81 FR 70940 - Benefits Payable in Terminated Single-Employer Plans; Interest Assumptions for Paying Benefits | |
81 FR 71106 - Advisory Committee; Antimicrobial Drugs Advisory Committee, Renewal | |
81 FR 71061 - Initiation of Antidumping and Countervailing Duty Administrative Reviews | |
81 FR 71107 - Advisory Committee on Heritable Disorders in Newborns and Children | |
81 FR 71109 - CDC/HRSA Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment | |
81 FR 71105 - Software as a Medical Device: Clinical Evaluation; International Medical Device Regulators Forum; Draft Guidance for Industry; Availability | |
81 FR 71109 - National Institute on Deafness and Other Communication Disorders; Notice of Closed Meeting | |
81 FR 71111 - National Heart, Lung, and Blood Institute; Notice of Closed Meeting | |
81 FR 71110 - Center for Scientific Review; Notice of Closed Meetings | |
81 FR 71111 - Center for Scientific Review; Notice of Closed Meetings | |
81 FR 71074 - Certain Oil Country Tubular Goods From the Republic of Korea: Preliminary Results of Antidumping Duty Administrative Review; 2014-2015 | |
81 FR 71059 - Certain Oil Country Tubular Goods From India: Preliminary Results and Partial Rescission of Countervailing Duty Administrative Review | |
81 FR 71056 - Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Preliminary Results of Countervailing Duty Administrative Review; 2014 | |
81 FR 71071 - Certain Oil Country Tubular Goods From the Socialist Republic of Vietnam: Preliminary Results of Antidumping Duty Administrative Review | |
81 FR 71162 - WTO Dispute Settlement Proceeding Regarding United States-Certain Measures Relating to the Renewable Energy Sector | |
81 FR 70925 - Airworthiness Directives; General Electric Company Turbofan Engines | |
81 FR 70929 - Airworthiness Directives; Continental Motors, Inc. Reciprocating Engines | |
81 FR 71113 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
81 FR 70980 - Pipeline Safety: Enhanced Emergency Order Procedures | |
81 FR 70966 - Air Plan Approval; KY; Removal of Stage II Gasoline Vapor Recovery Program | |
81 FR 70968 - Air Plan Approval; NC Infrastructure Requirements for the 2010 1-hour NO2 | |
81 FR 71017 - Proposed Establishment of Class E Airspace, Healy, AK | |
81 FR 70928 - Airworthiness Directives; Bell Helicopter Textron Helicopters | |
81 FR 71114 - Requests for Petitions for Duty Suspensions and Reductions | |
81 FR 70925 - Farm Credit Administration Board Policy Statements | |
81 FR 71025 - Election To Take Disaster Loss Deduction for Preceding Year | |
81 FR 70938 - Election To Take Disaster Loss Deduction for Preceding Year | |
81 FR 71029 - Tebufenozide; Proposed Pesticide Tolerance | |
81 FR 71026 - General Regulations; Areas of the National Park System, Sale and Distribution of Printed Matter and Other Message Bearing Items | |
81 FR 71244 - Retrospective Review-Improving the Previous Participation Reviews of Prospective Multifamily Housing and Healthcare Programs Participants | |
81 FR 71111 - Federal Property Suitable as Facilities To Assist the Homeless | |
81 FR 71035 - Notice of Proposed Supplementary Rules for Public Lands in Colorado: Cache Creek Placer Area | |
81 FR 70974 - Pyridaben; Pesticide Tolerances | |
81 FR 71202 - Clearing Requirement Determination Under Section 2(h) of the Commodity Exchange Act for Interest Rate Swaps | |
81 FR 71278 - Procedures for Reestablishing a Formal Government-to-Government Relationship With the Native Hawaiian Community | |
81 FR 70944 - General Permits and Permits by Rule for the Federal Minor New Source Review Program in Indian Country for Six Source Categories |
Forest Service
Census Bureau
First Responder Network Authority
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
U.S. Customs and Border Protection
Land Management Bureau
National Park Service
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Foreign Assets Control Office
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Correcting amendments.
The U.S. Department of Energy (DOE) published a final rule in the
This correction is effective October 14, 2016.
Mr. Bryan Berringer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-0371. Email:
Ms. Sarah Butler, U.S. Department of Energy, Office of the General Counsel, Mailstop GC-33, 1000 Independence Ave. SW., Washington, DC 20585-0121. Telephone: (202) 586-1777. Email:
On June 1, 2016, DOE published a final rule (the “June 2016 final rule”) to establish test procedures for portable air conditioners. 81 FR 35241. DOE has since found that the June 2016 final rule contained minor typographical errors in Title 10 of the Code of Federal Regulations (CFR) part 430, subpart B, appendix CC. This final rule correction revises appendix CC to subpart B of 10 CFR part 430, to correct these typographical errors. Specifically, in section 4.1.1, DOE is correcting the following errors: An incorrect subscript for the variable T
DOE also found that the summation symbols in the two dual-duct Q
Neither the errors nor the corrections in this document affect the substance of the rulemaking or any of the conclusions reached in support of the final rule. Accordingly, DOE finds that there is good cause under 5 U.S.C. 553(b)(B) to not issue a separate notice to solicit public comment on the corrections contained in this final rule as doing so would be impractical, unnecessary, and contrary to the public interest. For the same reasons and pursuant to 5 U.S.C. 553(d), DOE finds good cause to waive the 30-day delay in effective date.
DOE has concluded that the determinations made pursuant to the various procedural requirements to the June 2016 final rule that originally codified DOE's test procedures for portable air conditioners remain unchanged for this final rule technical correction. 81 FR 35241. The amendments from that final rule became effective July 1, 2016.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Reporting and recordkeeping requirements, and Small businesses.
For the reasons set forth in the preamble, DOE amends part 430 of title 10, Code of Federal Regulations by making the following correcting amendments:
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
4. * * *
4.1.1.
Calculate the total heat transferred from the surface of the duct(s) to the indoor conditioned space while operating in cooling mode for the outdoor test conditions in Table 1 of this appendix, as follows. For single-duct portable air conditioners:
4.1.2
For dual-duct portable air conditioners:
Where:
For single-duct and dual-duct portable air conditioners, calculate the sensible component of infiltration air heat contribution according to:
Calculate the latent heat contribution of the infiltration air according to:
The total heat contribution of the infiltration air is the sum of the sensible and latent heat:
Farm Credit Administration.
Notice of policy statements and index.
The Farm Credit Administration (FCA), as part of its annual public notification process, is publishing for notice an index of the 18 Board policy statements currently in existence. Most of the policy statements remain unchanged since our last
October 14, 2016.
A list of the 18 FCA Board policy statements is set forth below. FCA Board policy statements may be viewed online at
On August 8, 2016, the FCA Board updated FCA-PS-62 on, “Equal Employment Opportunity and Diversity.” The policy was published in the
The FCA will continue to publish new or revised policy statements in their full text.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all General Electric Company (GE) GEnx-1B64/P2, -1B67/P2, -1B70/P2, -1B70C/P2, -1B70/75/P2, and -1B74/75/P2 turbofan engines with engine assembly, part number (P/N) 2447M10G01 or P/N 2447M10G02, installed. This AD was prompted by a report of a significant fan rub event. This AD requires rework of the engine fan stator module assembly. We are issuing this AD to prevent failure of the fan blades and the load reduction device, loss of power to one or more engines, loss of thrust control, and loss of the airplane.
This AD is effective November 18, 2016.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 18, 2016.
For service information identified in this final rule, contact General Electric Company, GE Aviation, Room 285, 1 Neumann Way, Cincinnati, OH 45215; phone: 513-552-3272; email:
You may examine the AD docket on the Internet at
Christopher McGuire, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7120; fax: 781-238-7199; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all GE GEnx-1B64/P2, -1B67/P2, -1B70/P2, -1B70C/P2, -1B70/75/P2, and -1B74/75/P2 turbofan engines with engine assembly, P/N 2447M10G01 or P/N 2447M10G02, installed. The NPRM published in the
Japan Airlines and United Airlines requested that the airplane flight manual (AFM) limitations mandated by AD 2016-08-12, Amendment 39-18488 (81 FR 23581, April 22, 2016) (“AD 2016-08-12”), be removed from an aircraft that has complied with the fan case grind procedure mandated in this AD. They reason that once the fan case grind is completed on both engines installed on an airplane, there is no longer an unsafe condition.
We agree. Once the fan case grind has been completed on both engines installed on an airplane, the unsafe condition no longer exists. With agreement from the Transport Airplane Directorate (TAD), we added a terminating action paragraph to this AD.
Japan Airlines requested that alternate service documents be approved as compliance to AD 2016-06-08, Amendment 39-18439 (81 FR 14704, March 18, 2016) (“AD 2016-06-08”). They reason that the service documents provide the same procedure and the same post-rework configuration.
We disagree. AD 2016-06-08 is a separate AD issued by the TAD, which includes aircraft-level corrective actions. The commenter must contact the TAD to request a change to AD 2016-06-08. We did not change this AD.
GE requested that the applicability explicitly state that engine assembly, P/N 2447M10G03, is not applicable to this AD. They reason that engine assembly, P/N 2447M10G03, is a new production part that does not contain the unsafe condition.
We disagree. Since engine assembly, P/N 2447M10G03, is not listed in the applicability of this AD, it is not applicable to this AD. We did not change this AD.
GE requested that another procedure included within a new service bulletin, GE GEnx-1B Service Bulletin (SB) 72-0317 R00, dated June 29, 2016, be added as a means of compliance to this AD. They reason that this new procedure achieves the same configuration as the proposed procedure.
We agree. The new procedure in GE GEnx-1B SB 72-0317 R00, dated June 29, 2016, also corrects the unsafe condition addressed in this AD. We added GE GEnx-1B SB 72-0317 R00, dated June 29, 2016, as a means of compliance in this AD.
GE requested that we move the action specified in paragraph (f) Credit for Previous Action, to compliance paragraph (e) of this AD. They reason that this action is an equivalent method of performing the fan case rework.
We agree. The action is equivalent to the current compliance, but located within a different service document. We revised paragraph (f) and paragraph (e) of this AD accordingly.
United Airlines requested that we list AD 2016-06-08 and AD 2016-08-12 in this AD. They reason that AD 2016-06-08 and AD 2016-08-12 address the same unsafe condition as this AD and also mandate a fan case rework.
We agree. AD 2016-06-08 and AD 2016-08-12 address the same unsafe condition as this AD. We list AD 2016-06-08 and AD 2016-08-12 in paragraph (h) of this AD.
United Airlines requested that we supersede AD 2016-08-12 with this AD. They reason that AD 2016-06-08 and AD 2016-08-12 address the same unsafe condition of the engine and mandate a fan case rework procedure.
We disagree. An AD that mandates engine-level corrective actions, “this AD”, cannot supersede an AD, “AD 2016-08-12” that mandates aircraft-level corrective actions. AD 2016-08-12 mandates aircraft limitations in addition to the engine rework procedure that can only be mandated at the aircraft level, not the engine level. We did not change this AD.
United Airlines requested that we revise the operating procedures that require the ice removal procedure to be done every 5 minutes, rather than the preferred every 5 minutes or less, allowing the pilot to do the procedure prior to 5 minutes after Engine Indication and Crew Alerting System (EICAS) notification. United Airlines suggests the 5 minute requirement does not allow pilots to effectively manage the cockpit within reasonable parameters or room to operate.
We disagree. The AFM operating procedures are mandated by aircraft-level AD 2016-06-08 and AD 2016-08-12, which were issued by the TAD. The commenter must contact the TAD to request a change to AD 2016-06-08 or AD 2016-08-12. We did not change this AD.
United Airlines requested that we allow installation of engine assembly, P/N 2477M10G03, by using GE GEnx-1B SB 72-0317 to modify the engine instead of using the fan grind rework procedure as compliance to AD 2016-08-12. They reason that the procedure in GE GEnx-1B SB 72-0317 achieves the same engine outcome as the currently mandated compliance.
We disagree. AD 2016-08-12 was issued by the TAD. The commenter must contact the TAD to request a change to AD 2016-08-12. We did not change this AD.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic
We reviewed GE GEnx-1B SB 72-0314 R00, dated April 1, 2016. The SB describes procedures for increasing the clearance of the fan stator module assembly. We also reviewed GE GEnx-1B SB 72-0309 R00, dated March 11, 2016. That SB describes procedures for increasing the clearance of the fan stator module assembly. We also reviewed GE GEnx-1B SB 72-0317 R00, dated June 29, 2016. That SB releases a new fan stator module assembly. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 89 engines installed on airplanes of U.S. registry. We also estimate that it will take about 40 hours per engine to comply with this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the total cost of this AD to U.S. operators to be $302,600.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective November 18, 2016.
None.
This AD applies to all General Electric Company (GE) GEnx-1B64/P2, -1B67/P2, -1B70/P2, -1B70C/P2, -1B70/75/P2, and -1B74/75/P2 turbofan engines with engine assembly, part number (P/N) 2447M10G01 or P/N 2447M10G02, installed.
This AD was prompted by a report of a significant fan rub event. We are issuing this AD to prevent failure of the fan blades and the load reduction device, loss of power to one or more engines, loss of thrust control, and loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Modify the fan stator module assembly, with one of the following methods, before December 31, 2016.
(i) Use paragraphs 3.B.(1) through 3.B.(6) or 3.C.(1) through 3.C.(6) of the Accomplishment Instructions of GE GEnx-1B Service Bulletin (SB) 72-0314 R00, dated April 1, 2016, to do the modification.
(ii) Use paragraphs 3.B.(1) through 3.B.(6) or 3.C.(1) through 3.C.(6) of the Accomplishment Instructions of GE GEnx-1B SB 72-0309 R00, dated March 11, 2016, to do the modification.
(iii) Use paragraph 3.A. of the Accomplishment Instructions of GE GEnx-1B SB 72-0317 R00, dated June 29, 2016, to do the modification.
(2) Reserved.
Compliance with this AD constitutes terminating action for AD 2016-06-08, Amendment 39-18439 (81 FR 14704, March 18, 2016) (“AD 2016-06-08”) and AD 2016-08-12, Amendment 39-18488 (81 FR 23581, April 22, 2016) (“AD 2016-08-12”), provided that all of the airplanes within the operator's fleet that have engines identified in paragraph (c) of this AD are modified as specified in paragraph (e) of this AD. After fleet incorporation of this AD, do not install any engine listed in paragraph (c) of this AD unless the engine is modified as specified in paragraph (e) of this AD, or AD 2016-06-08, or AD 2016-08-12.
The Manager, Engine Certification Office, FAA, may approve AMOCs to this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to:
(1) For more information about this AD, contact Christopher McGuire, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7120; fax: 781-238-7199; email:
(2) AD 2016-06-08 and AD 2016-08-12 pertain to the subject of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) General Electric Company (GE) GEnx-1B Service Bulletin (SB) 72-0309 R00, dated March 11, 2016.
(ii) GE GEnx-1B SB 72-0314 R00, dated April 1, 2016.
(iii) GE GEnx-1B SB 72-0317 R00, dated June 29, 2016.
(3) For GE service information identified in this AD, contact General Electric Company, GE Aviation, Room 285, 1 Neumann Way, Cincinnati, OH 45215; phone: 513-552-3272; email:
(4) You may view this service information at FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For
(5) You may view this service information at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain Bell Helicopter Textron (Bell) Model 430 helicopters. This AD requires establishing a life limit for a certain main rotor hub attachment bolt (bolt) and removing from service each bolt that has met or exceeded its life limit. This AD was prompted by a documentation error that omitted the life limit of a certain part-numbered bolt from the Airworthiness Limitations section of the maintenance manual. The actions of this AD are intended to establish a life limit for a certain part-numbered bolt to prevent failure of a bolt, failure of a main rotor hub, and subsequent loss of control of a helicopter.
This AD is effective November 18, 2016.
For service information identified in this final rule, contact Bell Helicopter Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4; telephone (450) 437-2862 or (800) 363-8023; fax (450) 433-0272; or at
You may examine the AD docket on the Internet at
Matt Fuller, Senior Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177; telephone (817) 222-5110; email
On May 10, 2016, at 81 FR 28766, the
Transport Canada, which is the aviation authority for Canada, has issued Canadian AD No. CF-2013-26, dated September 24, 2013, to correct an unsafe condition for certain serial-numbered Bell Model 430 helicopters. Transport Canada advises that bolt P/N MS21250-08083, which replaced bolt P/N 20-065-08083 in 2009, has a retirement life of 5,000 hours. However, the retirement life for the replacement bolt was inadvertently omitted from the limitations section of the Bell 430 maintenance manual. Transport Canada advises that this situation, if not corrected, could result in failure of a bolt and loss of control of the helicopter. Transport Canada AD No. CF-2013-26 requires reviewing the helicopter records to determine if bolt P/N MS21250-08083 is installed, creating a historical service record, and establishing an airworthiness life of 5,000 hours air time.
We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the NPRM (81 FR 28766, May 10, 2016).
These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to our bilateral agreement with Canada, Transport Canada, its technical representative, has notified us of the unsafe condition described in its AD. We are issuing this AD because we evaluated all information provided by Transport Canada and determined the unsafe condition exists and is likely to exist or develop on other helicopters of the same type design and that air safety and the public interest require adopting the AD requirements as proposed.
This AD requires compliance within 10 hours TIS, while the Transport Canada AD requires compliance within 60 days.
We reviewed Bell Helicopter Alert Service Bulletin 430-12-47, dated November 14, 2012 (ASB). The ASB states that original bolt P/N 20-065-08083 has a retirement life of 5,000 hours but has been replaced by standard bolt P/N MS21250-08083, which does not have a life limit listed in the maintenance manual. The purpose of the ASB is to establish a life limit of 5,000 hours for the replacement bolt. Bell specifies reviewing the aircraft records back to January 2009 to determine which part-numbered bolts are installed. If a replacement bolt P/N MS21250-08083 is installed, the ASB specifies using data from aircraft records to create a historical service record for the replacement bolts and reflecting the 5,000 hours life limit. The ASB also specifies updating the Bell 430 maintenance manual.
We estimate that this AD affects 43 helicopters of U.S. Registry.
We estimate that operators may incur the following costs to comply with this AD. At an average labor cost of $85 per work-hour, we estimate reviewing and revising the records requires 1 work-hour for a cost of about $85 per helicopter and $3,655 for the U.S. fleet. We estimate replacing a bolt that has exceeded its life limit requires 0.5 work-hour plus $290 for a replacement bolt, for a total cost of $333 per bolt.
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 helicopters identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Model 430 helicopters, serial number 49001 through 49129, with a main rotor head attachment bolt (bolt) part number (P/N) MS21250-08083 installed, certificated in any category.
This AD defines the unsafe condition as a bolt remaining in service beyond its fatigue life. This condition could result in failure of a bolt, failure of the main rotor hub and subsequent loss of control of a helicopter.
This AD becomes effective November 18, 2016.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Within 10 hours time-in-service (TIS):
(1) Revise the Airworthiness Limitations section of the applicable maintenance manual or Instructions for Continued Airworthiness (ICA) to establish a life limit of 5,000 hours TIS for each bolt P/N MS21250-08083.
(2) Determine the number of hours TIS for each bolt and update the helicopter's historical records. If the hours TIS is unknown, calculate the number of hours TIS by counting the helicopter's hours TIS beginning January 1, 2009.
(3) Remove from service each bolt that has reached or exceeded its life limit.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Matt Fuller, Senior Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177; telephone (817) 222-5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
(1) Bell Helicopter Alert Service Bulletin 430-12-47, dated November 14, 2012, which is not incorporated by reference, contains additional information about the subject of this final rule. For service information identified in this final rule, contact Bell Helicopter Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4; telephone (450) 437-2862 or (800) 363-8023; fax (450) 433-0272; or at
(2) The subject of this AD is addressed in Transport Canada AD No. CF-2013-26, dated September 24, 2013. You may view the Transport Canada AD on the Internet at
Joint Aircraft Service Component (JASC) Code: 6220 Main Rotor Head.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain Continental Motors, Inc. (CMI) TSIO-550-K, TSIOF-550-K, TSIO-550-C, TSIOF-550-D, and TSIO-550-N reciprocating engines. This AD was
This AD is effective November 18, 2016.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 18, 2016.
For service information identified in this final rule, contact Continental Motors, Inc., 2039 Broad Street, Mobile, Alabama 36615; phone: 800-326-0089; Internet:
You may examine the AD docket on the Internet at
Scott Hopper, Aerospace Engineer, Atlanta Aircraft Certification Office, FAA, Small Airplane Directorate, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5535; fax: 404-474-5606; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain CMI TSIO-550-K, TSIOF-550-K, TSIO-550-C, TSIOF-550-D, and TSIO-550-N reciprocating engines. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.
We increased our estimate of the cost of the affected parts in this AD from $0 to $261 per engine and increased the number of labor hours to perform the replacement from 1 to 2 hours. This increased the overall estimated cost of compliance from $111,095 to $563,317.
We revised our reference in this AD from CMI Critical Service Bulletin (CSB) CSB15-7, Revision A, dated November 10, 2015 (also referred to as CMI CSB CSB15-7A, dated November 10, 2015) to CMI CSB CSB15-7, Revision B, dated April 26, 2016 (also referred to as CMI CSB CSB15-7B) to reflect the latest service information published by CMI.
We clarified in this AD that the affected oil cooler cross fitting has a part number AN918-1J or AN918-2J.
We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for the changes noted above. We have determined that these 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 CMI CSB CSB15-2, Revision C, dated November 9, 2015 (also referred to as CMI CSB CSB15-2C, dated November 9, 2015), and CMI CSB CSB15-7, Revision B, dated April 26, 2016 (also referred to as CMI CSB CSB15-7B, dated April 26, 2016). The CSBs describe detailed procedures for replacing oil cooler cross fittings, nipples, and bushings with a redesigned oil cooler cross fitting. 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 1,307 engines installed on airplanes of U.S. registry. We also estimate that it will take about 2 hours per engine to comply with this AD. The average labor rate is $85 per hour. Parts cost about $261 per engine. Based on these figures, we estimate the total cost of this AD to U.S. operators to be $563,317. Our cost estimate is exclusive of possible warranty coverage.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective November 18, 2016.
None.
This AD applies to Continental Motors, Inc. (CMI) TSIO-550-K, TSIOF-550-K, TSIO-550-C, TSIOF-550-D, and TSIO-550-N reciprocating engines with an engine serial number below 1012296 and an oil cooler cross fitting, part number AN918-1J or AN918-2J, installed.
This AD was prompted by a report of an uncommanded in-flight shutdown (IFSD) resulting in injuries and significant airplane damage. We are issuing this AD to prevent failure of the oil cooler cross fitting and engine, IFSD, and loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 12 months or 100 flight hours after the effective date of the AD, whichever occurs first, replace the oil cooler cross fitting, nipple, and bushing. Use the Action Required paragraphs III.1 through III.8 of CMI Critical Service Bulletin (CSB) CSB15-2, Revision C, dated November 9, 2015 (also referred to as CMI CSB CSB15-2C, dated November 9, 2015), or the Action Required paragraphs III.1 through III.8 of CMI CSB CSB15-7, Revision B, dated April 26, 2016 (also referred to as CMI CSB15-7B, dated April 26, 2016), to perform the replacement.
(2) Reserved.
You may take credit for the replacement that is required by paragraph (e) of this AD, if the replacement was performed before the effective date of this AD using CMI CSB CSB15-2B, dated November 6, 2015 or earlier versions; or CSB CSB15-7A, dated November 10, 2015 or earlier version.
The Manager, Atlanta Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
For more information about this AD, contact Scott Hopper, Aerospace Engineer, Atlanta Aircraft Certification Office, FAA, Small Airplane Directorate, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5535; fax: 404-474-5606; 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) Continental Motors, Inc. (CMI) Critical Service Bulletin (CSB) CSB15-2, Revision C, dated November 9, 2015 (also referred to as CMI CSB CSB15-2C, dated November 9, 2015).
(ii) CMI CSB CSB15-7, Revision B, dated April 26, 2016 (also referred to as CMI CSB CSB15-7B, dated April 26, 2016).
(3) For CMI service information identified in this AD, contact Continental Motors, Inc., 2039 Broad Street, Mobile, Alabama 36615; phone: 800-326-0089; Internet:
(4) You may view this service information at FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
(5) You may view this service information at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment adopts miscellaneous amendments to the required IFR (instrument flight rules) altitudes and changeover points for certain Federal airways, jet routes, or direct routes for which a minimum or maximum en route authorized IFR altitude is prescribed. This regulatory action is needed because of changes occurring in the National Airspace System. These changes are designed to provide for the safe and efficient use of the navigable airspace under instrument conditions in the affected areas.
Effective 0901 UTC, November 10, 2016.
Thomas J Nichols, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK, 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125). Telephone: (405) 954-4164.
This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.
The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Navigation (air).
Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, November 10, 2016.
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44719, 44721.
Bureau of Industry and Security, Commerce.
Final rule.
In this rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) to permit electronic submission as an additional method available to United States persons for reporting requests they receive to take certain actions in furtherance or support of an unsanctioned foreign boycott, as required under the restrictive trade practices or boycotts provisions of the EAR. These amendments are administrative changes to those provisions' reporting requirements, which currently permit reporting of such requests solely by mail. BIS is making these amendments consistent with U.S. Government policy to modernize regulatory requirements and promote efficiency. This rule also makes conforming regulatory changes.
This rule is effective October 14, 2016.
Cathleen Ryan, Director, Office of Antiboycott Compliance, by telephone at (202) 482-0520 or by email at
Part 760 of the Export Administration Regulations (EAR) is entitled “RESTRICTIVE TRADE PRACTICES OR BOYCOTTS,” otherwise referred to as the antiboycott provisions of the EAR. These provisions apply to, and may prohibit, certain activities in the interstate or foreign commerce of the United States undertaken by United States persons (defined in § 760.1(b)) with intent to comply with, further or support an unsanctioned foreign boycott (see § 760.1(e)). In addition, § 760.5(a)(1), Scope of Reporting Requirements, requires United States persons to report to the Department of Commerce (Department) certain requests they receive to take any “action which has the effect of furthering or supporting a restrictive trade practice or boycott fostered or imposed by a foreign country against a country friendly to the United States or against any United States person. . . .” (boycott-related requests). Section 760.5(b), Manner of Reporting, specifies the required reporting procedures; specifically, § 760.5(b)(4)—(b)(7) prescribe the manner of submission of the report to the Department. Failure to report such boycott-related requests in the manner prescribed may constitute a violation of the EAR.
Prior to this rule, § 760.5(b)(4) and (5) of the EAR required United States persons to prepare reports of boycott-related requests on form BIS 621-P (single transaction) or on form BIS 6051-P (multiple transactions), both available on-line through the Office of Antiboycott Compliance (OAC) page of the BIS Web site (OAC Web page) in a fillable PDF format, and to submit the reports in duplicate paper copy to OAC postmarked by the last day of the month following the calendar quarter in which the request was received (or, if received outside the United States, by the last day of the second month following the calendar quarter in which the request was received).
While United States persons may continue to submit paper reports by mail consistent with § 760.5(b)(4)—(b)(7), this final rule amends the EAR to allow submission of reports electronically, with the same deadlines, through the OAC Web page.
These revisions amend only the manner of reporting by offering an alternative method of submitting the report; in all other respects, the reporting requirements remain unchanged. Electronic filing offers the recipient of a boycott-related request a faster and less burdensome method to fulfill the regulatory reporting requirement than paper submission by mail. This action is consistent with the Administration's ongoing efforts to modernize regulatory requirements. Information on both paper and electronic submissions is available through the OAC Web page at
United States persons who choose to submit reports electronically may access the electronic form via a link on the OAC Web page. Once all required fields are completed and the report has been submitted electronically, an electronic “Submission Confirmation” notification, confirming the date and time of receipt of the submission by OAC, will automatically be displayed on the reporting person's screen. Additional guidance on accessing and completing electronic reports is available on the OAC Web page or by contacting OAC at 202.482.2448.
In this rule, BIS amends § 760.5 (Reporting Requirements) by revising paragraph (b) to provide United States persons with the option to submit reports of boycott-related requests electronically through the OAC Web page, as described above. Specifically, in this rule, BIS authorizes the electronic reporting option by amending paragraphs (b)(4), (b)(5), (b)(6) and (b)(7) of § 760.5 of the EAR.
The Export Administration Act of 1979, 50 U.S.C. 4601-4623 (Supp. III 2015) (available at
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.
2. This rule involves a collection previously approved by the Office of Management and Budget (OMB) under Control Number 0694-0012, “Report of Requests for Restrictive Trade Practice or Boycott—Single or Multiple Transactions,” which carries a burden hour estimate of 71 minutes to prepare and submit. Total burden hours associated with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.
4. Pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b), BIS finds that publication of this rule in other than final form is unnecessary because the amendments in this rule are administrative changes. They are provided to notify the public that an electronic filing option is available as a result of the technical update of the capabilities of OAC's information technology system. These administrative changes will not affect the rights of the public to continue to use the report filing option that existed prior to these changes. They do not change the existing regulatory requirement that United States persons report requests they receive to take certain actions in support of restrictive trade practices or boycotts. They only offer an option to use a second method, electronic reporting, as an alternative to reporting by mail. Offering this second method may facilitate compliance with the reporting requirements.
Section 553(d) of the APA generally provides that rules may not take effect earlier than thirty (30) days after they are published in the
No other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking is not required under the APA or by any other law, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Boycotts, Exports, Reporting and recordkeeping requirements.
Accordingly, part 760 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:
50 U.S.C. 4601
(b) * * *
(4) Reports may be submitted by mail or electronically. Mailed paper reports must be submitted in duplicate to: Report Processing Staff, Office of Antiboycott Compliance, U.S. Department of Commerce, Room 6098, Washington, DC 20230. Electronic reports must be submitted in duplicate, by following the prompts on the screen, through the Office of Antiboycott Compliance Web page of the BIS Web site,
(i) Where the person receiving the request is a United States person located in the United States, each report of requests must be postmarked or electronically date-stamped by the last day of the month following the calendar quarter in which the request was received (
(ii) Where the person receiving the request is a United States person located outside the United States, each report of requests must be postmarked or electronically date-stamped by the last day of the second month following the calendar quarter in which the request was received (
(5) Mailed paper reports may, at the reporting person's option, be submitted on either a single transaction form (Form BIS-621P, Report of Request for Restrictive Trade Practice or Boycott, Single Transaction, (revised 10-89)) or on a multiple transaction form (Form BIS-6051P, Report of Request for Restrictive Trade Practice or Boycott, Multiple Transactions, (revised 10-89)).
Electronic reports may be submitted only on the single transaction form, which will electronically reproduce the reporting person's identifying information to facilitate reporting of multiple transactions.
(6) Reports, whether submitted on the paper single transaction form or on the paper multiple transaction form, or submitted electronically, must contain entries for every applicable item on the form, including whether the reporting person intends to take or has taken the action requested. If the reporting person has not decided what action he will take by the time the report is required to be filed, he must later report the action he decides to take within 10 business days after deciding. In addition, anyone filing a report on behalf of another must so indicate and identify that other person.
(7) Each report of a boycott request, whether submitted by mail or electronically, must be accompanied by two copies of the relevant page(s) of any document(s) in which the request appears (
Federal Trade Commission.
Final rule.
As part of its regular review of all its Rules and Guides, and in response to Congressional amendments to the Hobby Protection Act (“Hobby Act” or “Act”), the Federal Trade Commission (“Commission”) amends its Rules and Regulations under the Hobby Protection Act (“Rules”).
This rule is effective November 16, 2016.
Joshua S. Millard, (202) 326-2454, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave. NW., Washington, DC 20580.
As part of its ongoing regulatory review program, the Commission published a
On November 29, 1973, President Nixon signed the Hobby Protection Act, 15 U.S.C. 2101-2106. The Hobby Act requires manufacturers and importers of “imitation political items”
In 1975, the Commission issued Rules and Regulations Under the Hobby Protection Act, 16 CFR part 304.
The Commission reviewed the Rules in 2004. That review yielded many comments proposing that the Commission expand coverage to products beyond the scope of the Hobby Act and address problems involving the selling (or passing off) as originals of reproductions of antiques and other items not covered by the Act. However, the Commission retained the Rules without change, noting that it did not have authority under the Hobby Act to expand the Rules as requested.
In 2014, the Commission again requested public comment on the Rules' costs, benefits, and overall impact.
On December 19, 2014, President Obama signed into law H.R. 2754, the Collectible Coin Protection Act (“CCPA”), a short set of amendments to the Hobby Act. The CCPA amends the Act's scope to address not only the distribution by manufacturers and importers of imitation numismatic items, but also “the sale in commerce” of such items. CCPA, Public Law 113-288, section 2(1)(A) (2014). Additionally, the CCPA makes it a violation of the Hobby Act “for a person to provide substantial assistance or support to any manufacturer, importer, or seller if that person knows or should have known that the manufacturer, importer, or seller is engaged in any act or practice” violating the marking requirements of the Act. Public Law 113-288, section 2(1)(B).
The Commission received six comments
All of the commenters who addressed the issue supported the Rules; none advocated rescinding them. For example, one commenter stated, “there [is] a continuing need for the Rules as currently promulgated because . . . they do protect consumers.”
Some commenters suggested modifications to the Rules. In particular, several commenters suggested modifications to address “fantasy coins,” government-issued coins altered by non-governmental entities to bear historically impossible dates or other features marketed as novelties.
From the responses to its 2014 request for public comment, the Commission concluded that there was a continuing need for the Rules, and that the costs they impose on businesses were reasonable.
Additionally, the Commission found that it was unnecessary to amend the Rules to address specific collectible items (such as “fantasy coins,” as some commenters suggested) because it can address specific items as the need arises.
While the Commission found it was unnecessary to amend the Rules to regulate specific collectible items, it observed that amendments to the Rules were necessary to bring them into harmony with Congress' expansion of the Hobby Act. Hence, in April 2016, it solicited public comment on proposed amendments to the Rules.
The Commission proposed to align its Rules with the amended Hobby Act by: (1) Extending the Rules' scope to cover persons or entities engaged in “the sale in commerce” of imitation numismatic items; and (2) stating that persons or entities violate the Rules if they provide substantial assistance or support to any manufacturer, importer, or seller of imitation numismatic items, or any manufacturer or importer of imitation political items, when they know, or should have known, that such person is engaged in any act or practice violating the marking requirements set forth in the Hobby Act and the Rules. The Commission solicited comment on the regulatory burden the amended Rules might impose.
The Commission received no substantive comments in response.
The record supports modifying the Rules as the Commission proposed. As the CCPA's amendments to the Hobby Act require conforming changes in the Rules, and the record supports amending the Rules as proposed, the Commission accordingly amends the Rules' “Applicability” section, set forth at 16 CFR 304.3. The revised text of this provision is set forth at the end of this FRN.
The amendments to the Rules do not constitute a “collection of information” under the Paperwork Reduction Act, 44 U.S.C. 3501-3521 (“PRA”). The amendments incorporate changes made to the Hobby Act pursuant to the enactment of the CCPA. Prior to those changes, the Hobby Act already required manufacturers and importers of imitation political items and imitation numismatic items to mark such replica items (with the calendar year of manufacture or the word, “copy,” respectively) so they may be identified as replicas. The disclosure requirement under the existing Rules and the amendments are not a PRA “collection of information” for which “burden” is evaluated and estimated as they specify the wording for proper disclosure (here, the year of manufacture or the word “copy”).
The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601-612, requires an agency to provide an initial and final analysis of the anticipated economic impact of amendments on small entities. The RFA provides that such an analysis is not required if the agency certifies that the regulatory action will not have a significant economic impact on a substantial number of small entities.
In the April 2016 NPRM, the Commission's staff estimated that approximately 5,000 retailers, manufacturers, and importers of imitation numismatic items are subject to the Rules. 81 FR 23219, 23221. FTC staff further estimated that there are fewer manufacturers and importers of imitation political items, from 500 to 2,500.
From the record of this proceeding, the Commission is unable to conclude how many of the above-listed entities qualify as small businesses. The record does not contain information regarding the size of the entities subject to the Rules. Moreover, the relevant NAICS categories include many entities that do not engage in activities covered by the Rules. Therefore, estimates of the percentage of small businesses in those categories would not necessarily reflect the percentage of small businesses subject to the Rules in those categories.
Even absent this data, however, the Commission does not expect that the amendments will have a significant economic impact on small entities. As discussed above in Section V, the amendments do not impose any new costs upon persons or entities engaged in commerce concerning items that comply with the marking requirements of the Hobby Act and Rules. This document serves as notice to the Small Business Administration of the agency's certification of no effect. The Commission has nonetheless determined that it is appropriate to publish the following final regulatory flexibility analysis to ensure that the economic impact of the amendments on small entities is fully addressed.
As explained above, the amendments are intended to harmonize the Rules with the Hobby Act, as amended by the CCPA. Amending 16 CFR 304.3 extends the Rules' coverage to persons engaged in the sale in commerce of imitation numismatic items, and persons or entities that provide substantial assistance or support to any manufacturer, importer, or seller of covered items under certain circumstances. The legal basis for this amendment is the CCPA, which expanded the scope of the Hobby Act.
The Commission received no substantive comments from the public and no comments from the Chief Counsel for Advocacy of the Small Business Administration. Consequently, no significant issues have arisen from comments, and no changes have been made to the proposed rule in the final rule as a result of comments.
As noted earlier, staff estimates that approximately 5,000 retailers, manufacturers, and importers of imitation numismatic items are subject to the Rules, and from 500 to 2,500 manufacturers and importers of imitation political items are subject to the Rules.
The Rules impose a disclosure (marking) burden, currently estimated at 5 hours annually. The amendment is not expected to increase this burden on any person or entity subject to and in compliance with the Rules. The additional burden imposed by the amendment will result solely from the expanded scope of the Rules to cover certain additional persons and entities, consistent with the Hobby Act, as amended. As noted earlier, the disclosure burden imposed by the Rules is normally addressed in the manufacturing process, which requires graphic or other design skills for the die, cast, mold or other process used to manufacture the item.
Commission staff have not identified any significant alternatives that would accomplish the statute's objectives while minimizing any significant economic impact on small entities. The amendment, as explained earlier, is intended to bring the scope of the Rules in line with the scope of the Hobby Act, as amended by the CCPA. Neither the Act nor the Rules exempt small entities, or impose lesser or different requirements on such entities. Such exemptions or alternative requirements would undermine the purpose and effect of the Act and the Rules, to the extent that Congress has determined by law that covered items, regardless of the size of the entity that manufactures, imports or sells them, require markings (
Hobbies, Labeling, Trade practices.
For the reasons set forth above, the Federal Trade Commission amends 16 CFR part 304 as follows:
15 U.S.C. 2101
Any person engaged in the manufacturing, or importation into the United States for introduction into or distribution in commerce, of imitation political or imitation numismatic items shall be subject to the requirements of the Act and the regulations promulgated thereunder. Any person engaged in the sale in commerce of imitation numismatic items shall be subject to the requirements of the Act and the regulations promulgated thereunder. It shall be a violation of the Act and the regulations promulgated thereunder for a person to provide substantial assistance or support to any manufacturer, importer, or seller of imitation numismatic items, or to any manufacturer or importer of imitation political items, if that person knows or should have known that the manufacturer, importer, or seller is engaged in any practice that violates the Act and the regulations promulgated thereunder.
By direction of the Commission.
Internal Revenue Service (IRS), Treasury.
Final and temporary regulations.
This document contains final and temporary regulations relating to the election to accelerate the timing of a loss sustained by a taxpayer attributable to a federally declared disaster. The text of the temporary
Daniel Cassano (202) 317-7011 (not a toll free number).
This document contains amendments to the Income Tax Regulations (26 CFR part 1) under section 165(i) of the Internal Revenue Code (Code) regarding the election to deduct a loss attributable to a federally declared disaster for the taxable year prior to the year in which the disaster occurred.
Under section 165, a loss from a federally declared disaster is a form of casualty loss. A casualty loss is generally allowed as a deduction only for the taxable year in which the loss is sustained (disaster year). Section 165(i) provides an exception to the general timing rule by allowing a taxpayer to elect to treat an allowable loss occurring in a disaster area and attributable to a federally declared disaster as sustained in the taxable year immediately prior to the taxable year in which the disaster occurred (preceding year).
Taxpayers make the election under section 165(i) by clearly indicating on an original return, an amended return, or a refund claim, that the election has been made. The existing regulations under section 165(i) provide that the original return, amended return, or refund claim must be filed on or before the later of: (1) The due date of the taxpayer's income tax return (determined without regard to any extension of time for filing the return) for the disaster year; or (2) the due date of the taxpayer's income tax return (determined with regard to any extension of time for filing the return) for the preceding year. Thus, taxpayers typically have until the unextended due date of the return for the disaster year to make the section 165(i) election.
Concerns have been raised that the due date for making the section 165(i) election may not always provide sufficient time for taxpayers affected by disasters to consider whether to make the election. These concerns led the Department of the Treasury (Treasury Department) and the IRS to issue notices postponing the due date in the wake of a number of federally declared disasters in the last ten years. Notice 2006-17, 2006-1 C.B. 559, postponed the due date for victims of Hurricanes Katrina, Rita, and Wilma to make a section 165(i) election for their disaster losses to October 16, 2006. Notice 2013-21, 2013-15 I.R.B. 903, postponed the due date for victims of Hurricane Sandy to make a section 165(i) election for their disaster losses to October 15, 2013. Notice 2014-20, 2014-16 I.R.B. 937, postponed the due date for victims of a major Colorado flooding event to make a section 165(i) election for their disaster losses to October 15, 2014.
These temporary regulations add a paragraph that defines the following terms for purposes of the temporary regulations: Federally declared disaster; federally declared disaster area; disaster loss; disaster year; and preceding year. A
These temporary regulations generally provide that the due date for making the section 165(i) election is six months after the due date for filing the taxpayer's federal income tax return for the disaster year (determined without regard to any extension of time to file). This amount of time is comparable to the length of the postponements of the due dates for making the election granted in the notices identified in the Background section of this preamble.
These temporary regulations also authorize the Treasury Department and the IRS to issue additional guidance regarding the time and manner for making the section 165(i) election. The authorization in these temporary regulations will permit the Treasury Department and the IRS to act quickly to adapt to both taxpayer needs and the needs of tax administration as future disasters occur.
Contemporaneously with these temporary regulations, the Treasury Department and the IRS are issuing Rev. Proc. 2016-53, I.R.B 2016-44, which specifies how a taxpayer makes a section 165(i) election and incorporates the due date for making the election provided in these temporary regulations.
These temporary regulations extend the period of time for revoking a section 165(i) election to ninety (90) days after the due date for making the election. This change conforms to the rule established by the United States Tax Court in
These temporary regulations reflect rules established elsewhere in federal tax law that a taxpayer cannot deduct the same loss in more than one taxable year. Taxpayers must amend the return for the disaster year in order to make the section 165(i) election for a disaster loss if the taxpayer has deducted such loss for the disaster year. Similarly, taxpayers must amend the preceding year return to revoke a section 165(i) election before filing a return or amended return to deduct the loss in the disaster year. Rev. Proc. 2016-53 contains further guidance for taxpayers in amending returns and taking consistent return positions to minimize the administrative burden on the IRS in ensuring the prompt processing of refunds.
These temporary regulations are effective immediately because they provide relief to taxpayers who suffer casualty losses attributable to federally declared disasters and the Treasury Department and the IRS anticipate a significant number of casualty losses arising from recent instances of flooding
Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), please refer to the cross-referencing notice of proposed rulemaking published in the Proposed Rules section in this issue of the
The principal authors of these regulations are Daniel Cassano and Christopher Wrobel of the Office of the Associate Chief Counsel (Income Tax & Accounting). However, other personnel from the Treasury Department and the IRS participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 7805 * * *
(a) through (j) [Reserved]. For further guidance, see § 1.165-11T(a) through (j).
(a)
(b)
(1) A
(2) A
(3) A
(4) The
(5) The
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
Pension Benefit Guaranty Corporation.
Final rule.
This final rule amends the Pension Benefit Guaranty Corporation's regulation on Benefits Payable in Terminated Single-Employer Plans to
Effective November 1, 2016.
Deborah C. Murphy (
PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulation are also published on PBGC's Web site (
PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.
The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for November 2016.
The November 2016 interest assumptions under the benefit payments regulation will be 0.50 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for October 2016, these interest assumptions are unchanged.
PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.
Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during November 2016, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.
PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.
Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.
In consideration of the foregoing, 29 CFR part 4022 is amended as follows:
29 U.S.C. 1302, 1322, 1322b, 1341(c)(3)(D), and 1344.
Coast Guard, DHS.
Final rule.
The Coast Guard is amending several permanent safety zones located in the Captain of the Port San Francisco zone that are established to protect public safety during annual firework displays. These amendments are necessary to update listed events to accurately reflect the firework display locations. This regulation prohibits the movement of vessels within the established firework display areas unless authorized by the Captain of the Port (COTP) San Francisco or a designated representative.
This rule is effective November 14, 2016.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Junior Grade Christina Ramirez, U.S. Coast Guard Sector San Francisco; telephone 415-399-3585, email
On April 19, 2016 we published a notice of proposed rulemaking (NPRM) entitled Safety Zones; San Francisco, CA, in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port San Francisco (COTP) has determined that potential hazards associated with the current outdated fireworks locations, if not updated, pose safety concerns for event crew, spectators, participants of the event, participating vessels, and other users and vessels of the waterway.
As noted above, we received no comments on our NPRM published on April 19, 2016. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.
This rule amends Table 1 in § 165.1191 to update three events to reflect the current event locations. These events are listed numerically in Table 1 of this section: (7), (8), (22).
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.
This regulatory action determination is based on the size, location, duration, and time-of-day of each safety zone. Vessel traffic would be able to safely transit around each safety zone which would impact a small designated area of the COTP San Francisco zone for less than 1 hour during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Local Notice to Mariner and Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zones.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above this rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132,
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zones lasting less than 1 hour that would prohibit entry within 1,000 feet of a fireworks barge. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Department of Homeland Security Delegation No. 0170.1.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is finalizing general permits for use in Indian country pursuant to the Federal Minor New Source Review (NSR) Program in Indian Country for new or modified minor sources in the following six source categories: concrete batch plants; boilers and emergency engines; stationary spark ignition engines; stationary compression ignition engines; graphic arts and printing operations; and sawmill facilities.
This final rule is effective on November 14, 2016.
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2011-0151. All documents in the docket are listed in the
Christopher Stoneman, Outreach and Information Division, Office of Air Quality Planning and Standards, (C-304-03), Environmental Protection Agency, Research Triangle Park, North Carolina, 27711, telephone number (919) 541-0823, facsimile number (919) 541-0072, email address:
Throughout this document, “Reviewing Authority,” “we,” “us” and “our” refer to the EPA. The information in this preamble is organized as follows:
Entities potentially affected by this final action consist of owners and operators of facilities included in the following source categories that are located, or planning to locate, 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 where there is no EPA-approved program in place and that are subject to the requirements of the Federal Indian Country Minor NSR rule.
This list is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be potentially affected by this action. You should examine the applicability criteria in the Federal Minor NSR Program in Indian Country (40 Code of Federal Regulations (CFR) 49.153) to determine whether your facility could be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, contact the appropriate person listed in the
In addition to being available in the docket, an electronic copy of this final rule is posted on the tribal minor NSR home page at
In July 2011, the EPA issued the Federal Minor NSR Program in Indian Country rule
In this action, the EPA is finalizing general permits for the following six source categories for the permitting of affected emissions units and emissions-generating activities: concrete batch plants; boilers and emergency engines; stationary spark ignition engines; stationary compression ignition engines; graphic arts and printing operations; and sawmill facilities. We are providing the following implementation documents and tools for all of the permits we are finalizing today: questionnaires; instructions; potential to emit (PTE) calculators; background documents; and Request for Coverage Forms (applications). For all of these permits, the implementation tools and documents are available at either:
Five prior actions are also relevant to this action. First, in a final rulemaking signed May 22, 2014, and published June 16, 2014,
1. Extending the minor NSR permitting deadline for true minor sources in the oil and natural gas sector located, or planning to locate, in Indian country (§ 49.151(c)(1)(iii)(B));
2. Adjusting the registration deadline to conform to the extended permitting deadline for true minor sources in the oil and natural gas sector (§§ 49.151(c)(1)(iii)(A) and 49.160(c)(1)(ii) and (iii)); and
3. Eliminating a requirement for all true minor sources that begin construction before September 2, 2014, and are eligible to construct pursuant to a general permit, to obtain a minor NSR permit 6 months after the EPA publishes the relevant general permit. No general permits had been finalized by the date 6 months prior to September 2, 2014, so the provision was moot (§ 49.151(c)(1)(iii)(B)).
Second, on May 1, 2015, the EPA published a final rule, “General Permits and Permits by Rule for the Federal Minor New Source Review Program in Indian Country for Five Source Categories,” to simplify the Clean Air Act (CAA) permitting process for certain smaller sources of air pollution commonly found in Indian country.
Third, on September 18, 2015, the EPA proposed a federal implementation plan (FIP)
Fourth, on February 24, 2016, we finalized three amendments to the Federal Indian Country Minor NSR rule that we proposed in our September 18, 2015, proposal, along with the FIP:
1. We revised the deadline under § 49.151(c)(1)(iii)(B) by which new and modified true minor sources in the oil and natural gas sector that are located in (or planning to locate in) reservation areas of Indian country or other areas of Indian country for which tribal jurisdiction has been demonstrated must obtain a minor NSR permit prior to beginning construction. We extended the deadline from March 2, 2016, to October 3, 2016, for all new and modified true minor sources within the oil and natural gas sector located in Indian country.
2. We revised § 49.151(c)(1)(iii)(A) to conform the registration deadline to the extended permitting deadline in § 49.151(c)(1)(iii)(B).
3. We revised § 49.160(c)(1)(ii) to conform the registration deadline to the extended permitting deadline in § 49.151(c)(1)(iii)(B).
Finally, on June 3, 2016, the EPA published the final FIP for true minor sources in the oil and natural gas sector (and associated amendments to the Federal Indian Country Minor NSR rule).
On August 21, 2006, the EPA proposed the regulation: “Review of New Sources and Modifications in Indian Country” (
The Federal Indian Country Minor NSR rule applies to new and modified minor stationary sources and to minor modifications at existing major stationary sources located in Indian country
Likewise, any existing stationary source (minor or major) must apply for and obtain a minor NSR permit before beginning construction of a physical or operational change that will increase the allowable emissions of the stationary source by more than the specified minor source threshold amounts, if the change does not otherwise trigger the permitting requirements of the PSD or nonattainment major NSR program(s).
Among other things, the Federal Indian Country Minor NSR rule created a framework for the EPA to streamline the issuance of preconstruction permits to true minor sources by using general permits.
“True minor source” under the Federal Indian Country Minor NSR rule means a source that emits, or has the PTE, regulated NSR pollutants in amounts that are less than the major source thresholds under either the PSD Program at 40 CFR 52.21, or the Major NSR Program for Nonattainment Areas in Indian Country at 40 CFR 49.166-49.173, but equal to or greater than the minor NSR thresholds in § 49.153, without the need to take an enforceable restriction to reduce its PTE to such levels. A source's PTE includes fugitive emissions, to the extent that they are quantifiable, only if the source belongs to one of the 28 source categories listed in part 51, appendix S, paragraph II.A.4(iii) or § 52.21(b)(1)(iii) of 40 CFR, as applicable. By contrast, “synthetic minor source” means a source that otherwise has the PTE regulated NSR pollutants in amounts that are at or above those for major sources, but that has taken a restriction so that its PTE is less than such amounts. Such restrictions must be enforceable as a legal and practical matter.
The Federal Indian Country Minor NSR rule specifies the process and requirements for using general permits to authorize construction and modifications at true minor sources as a streamlined permitting approach. A general permit, for purposes of this action, is a permit document that contains standardized requirements that multiple stationary sources can use. The EPA may issue a general permit for categories of emissions units or stationary sources that are similar in nature, have substantially similar emissions, and would be subject to the same or substantially similar permit requirements.
While the final Federal Indian Country Minor NSR rule contemplated issuance of general permits by the EPA Regional offices, we have determined, for the permits we are finalizing here, that a nationwide action is appropriate. Through this action, we are finalizing general permits to serve as preconstruction permit authorizations that contain emission limitations and other restrictions to govern how specified sources construct, modify and operate.
On July 17, 2014, the EPA published a proposed rule, “General Permits and Permits by Rule for the Federal Minor New Source Review Program in Indian Country,” to simplify the CAA permitting process for certain smaller sources of air pollution commonly found in Indian country.
As its preferred approach, the EPA made available draft general permits for use in Indian country pursuant to the Federal Indian Country Minor NSR rule for new or modified true minor sources in the following six source categories: Concrete batch plants; boilers; stationary spark ignition engines; stationary compression ignition engines; graphic arts and printing operations; and sawmill facilities. In the alternative, the EPA also proposed a permit by rule for use in Indian country for new or modified true minor sources in one of the six source categories: graphic arts and printing operations.
We requested comment on the following areas:
1. All aspects of the permit documents and implementation tools for the six source categories:
• Concrete batch plants;
• Boilers;
• Stationary spark ignition engines;
• Stationary compression ignition engines;
• Graphic arts and printing operations; and
• Sawmill facilities;
2. The appropriateness of using a streamlined general permit/permit by rule application for one source category: graphic arts and printing operations;
3. Various aspects of the EPA's conclusion on its control technology review that the measures in the draft/proposed permits are technically and economically feasible and cost effective because they are currently used by similar sources in other areas of the country;
4. Setback requirements, which are provisions related to the location of the emitting activities and the source property boundary and certain nearby structures;
5. The process for sources to address threatened or endangered species and historic properties with respect to the six categories in the proposal;
6. Use of throughput limits and capacity limits as surrogates for tons per
7. Finalizing both permitting mechanisms for graphic arts and printing operations by providing authorization to construct or modify true minor sources in this category via permits by rule and by providing enforceable limitations to create synthetic minor sources in this category via general permits; and
8. A proposed rule change to the Federal Indian Country Minor NSR rule: shortening the general permit application review process from 90 to 45 days for graphic arts and printing operations.
This section outlines the major areas where we sought comment in the July 17, 2014, proposal, highlights our responses to major comments received and describes our final action. We received 11 comments from industry (or their representatives), 12 comments from tribes (or their representatives), 1 comment from a local air quality agency and 1 comment from a state environmental agency. The Response to Comments (RTC) Document can be found in docket EPA-HQ-OAR-2011-0151 and is available online at:
As our preferred approach, the EPA made available draft general permits for use in Indian country pursuant to the Federal Indian Country Minor NSR rule for new or modified minor sources in the following six source categories: Concrete batch plants; boilers; stationary spark ignition engines; stationary compression ignition engines; graphic arts and printing operations; and sawmill facilities. In the alternative, we also proposed a permit by rule for use in Indian country for new or modified minor sources in the graphic arts and printing operations source category. Overall, we sought comment on all aspects of the permit documents and implementation tools for these source categories. Specifically, Section VI of the July 17, 2014, proposal provided a summary of the specific terms and conditions of the general permits and indicated specific areas where we requested comment.
The following sections provide an abbreviated summary of changes to the implementation tools, as well as significant comments on the draft general permits for the six source categories in this final rule and our responses. Detailed responses to the comments on the permits and related tools and documents are addressed in the RTC Document. In our final action, based on comments, we have made substantive changes to the terms and conditions of all of the draft permits and the related implementation tools in several areas, including the following: setback requirements; throughput limits; various control requirements; and enhancements and clarifications to the implementation tools.
In direct response to public comments (and upon further review), we are revising the draft general permits and implementation tools in many areas, including as follows:
(1) Expanding the scope of the draft boilers general permit to include emergency engines so that the final general permit is titled: “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country”;
(2) Removing emissions limitations for emergency engines from the general permits for the following three source categories: Sawmill facilities, graphic arts and printing operations and concrete batch plants, as discussed below with respect to the final engines general permits (we did so because we expect that emergency engines that are not located at sources covered by a general permit or permit by rule that we have already developed, and that are not otherwise exempt consistent with § 49.153 of the Federal Indian Country Minor NSR rule,
(3) Recalculating maximum capacity ratings for certain boilers in the final “General Air Quality Permit for New or Modified Boilers and Emergency Engines in Indian Country” based on non-greenhouse gas (GHG) pollutants (
(4) Revising and reconfiguring control options for the following three general permits to accommodate their use by sources seeking synthetic minor status: “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country,” “General Air Quality Permit for New or Modified Minor Source Compression Ignition Engines in Indian Country” and “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country”;
(5) Revising the titles of all six general permits in this action, to make it clear that they are all available for true minor and synthetic minor sources (including all of the implementation tools), by removing the words “true minor” (and adding clarifying text to the Request for Coverage Forms to reflect this expanded coverage of source types);
(6) Adjusting the definition of “promptly” for reporting deviations under the final “General Air Quality Permit for New or Modified Boilers and Emergency Engines in Indian Country”
(7) Adjusting the condition concerning the timing and location for records retention in the final “General Air Quality Permit for New or Modified Concrete Batch Plants in Indian Country” to conform to the corresponding condition in the general permits the EPA has already completed for hot mix asphalt plants and stone quarrying, crushing and screening facilities;
(8) Revising the general permit for sawmill facilities to accommodate sources that may trigger the major source threshold for hazardous air pollutants (HAPs) prior to reaching the 80 ton per year/12-month rolling emission limits in the permit and that, thus, may need to seek synthetic minor status for HAP emissions;
(9) Revising the throughput limits in the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country” to match the revised input data provided in the sawmill facilities PTE calculator (from thousand board-feet (Mbf) to wood log inputs expressed in tons);
(10) Correcting the board-foot throughput limit in the “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country” to reflect corrections made to the sawmill facilities PTE calculator;
(11) Adding a separate throughput limit to the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country” for Serious PM
(12) Clarifying in the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country” that gaseous and liquid-fueled auxiliary heaters up to 10 million British thermal units per hour (MMBtu/hour) are allowed, separate from the 30 MMBtu/hr boiler limit, which can include solid fuels like biomass;
(13) Revising the boiler and auxiliary heater capacity limits for Severe and Extreme ozone nonattainment areas in the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country” to allow for larger boiler capacity;
(14) Adding a condition to the “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country” that restricts all emergency engines in Severe and Extreme ozone nonattainment areas to units that are model year 2006 or later to ensure the sources' emissions stay below major source levels;
(15) Changing the permitting tools (
(16) Retitling the implementation tools for the boilers and emergency engines source category to match the change in the title of the general permit;
(17) Clarifying each of the implementation tools for the final “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country” and the final “General Air Quality Permit for New or Modified Minor Source Compression Ignition Engines in Indian Country” to better identify the types of sources likely to be eligible for these permits and to clarify the requirements, including reflecting the removal of the emergency engines provisions from these permits;
(18) Removing the list of eligibility criteria at the front of the questionnaires, to avoid confusion and redundancy with the eligibility criteria provided in the Request for Coverage Forms;
(19) Changing the instructions and questionnaires to reflect changes made to the Request for Coverage Forms;
(20) Revising the Request for Coverage Form for the final “General Air Quality Permit for New or Modified Minor Source Concrete Batch Plants in Indian Country” to:
• Clarify that the source may seek approval for multiple locations and that additional locations may be added in the future; and
• Add a section allowing a source to list multiple source locations in cases where a portable source is planning to relocate and for which it wants Reviewing Authority approval;
(21) Adding to the Request for Coverage Forms for the general permits a request for estimates of PTE and, at existing sources, actual emissions, to satisfy the minor source registration requirement of § 49.160, and clarifying that sources covered by the general permits must also register under § 49.160 (submittal of the Request for Coverage Form satisfies that requirement);
(22) Adding standards for non-engine combustion units to the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country”;
(23) Revising the Request for Coverage Form for the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” to require more detailed information from the applicant that is appropriate for a general permit that is being made available for both true minor and synthetic minor sources;
(24) Revising the threatened and endangered species and historic properties screening procedures in the Request for Coverage Forms to reflect changes made to those same procedures in response to comments that we received on the January 14, 2014, proposal that we also reflected in the final rule “General Permits and Permits by Rule for the Federal Minor New Source Review Program in Indian Country for Five Source Categories,” published on May 1, 2015;
(25) Correcting an error on the “Input” page for the PTE calculator for the final “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country” that did not properly sum emissions for all of the small, auxiliary heaters and boilers, and adjusting the MMBtu/hr limit for boilers and hp for engines for Extreme ozone nonattainment areas once we corrected the error;
(26) Adding the following caveat to the PTE calculators for the six source categories in this action: “If you have one or more of the following units that are exempt from the Indian Country Minor NSR Program,
• Internal combustion engines used for landscaping purposes;
• Emergency generators, designed solely for the purpose of providing electrical power during power outages:
○ In nonattainment areas classified as Serious or lower, the total maximum manufacturer's site-rated hp of all units shall be below 500;
○ In attainment areas, the total maximum manufacturer's site-rated hp of all units shall be below 1,000;
• Stationary internal combustion engines with a manufacturer's site-rated hp of less than 5; and
• Furnaces or boilers used for space heating that use only gaseous fuel, with a total maximum heat input (
○ In nonattainment areas classified as Serious or lower, 5 MMBtu/hr or less;
○ In nonattainment areas classified as Severe or Extreme, 2 MMBtu/hr or less; and
○ In attainment areas, 10 MMBtu/hr or less.”
In addition, we made some changes in the general provisions that are included in all of the final permits from this final action and the May 1, 2015, final action. One commenter stated that the condition in the draft general permits concerning Notification of Change in Ownership is unclear in establishing whether it is the responsibility of the new permittee or the old permittee to comply with the notification requirements. The same commenter requested that certain conditions of the draft general permit be clarified to cover situations in which there is a change of operator, but the ownership of the equipment is the same. In response to the comments, the EPA has clarified in the permits for the six source categories covered by this action that it is the responsibility of the new permittee to submit a written or electronic notice to the Reviewing Authority within 90 days before or after the change in ownership is effective. For all of the permits, we have also modified the two conditions related to changes in ownership that appear in Sections 5 and 6 to include the word “operator” to clarify that these conditions cover a change in either ownership or operator where the equipment is the same.
One commenter stated that the term “Responsible Official” should be defined to ensure truth, accuracy and completeness of required reports. The EPA agrees and, in response to the comment, we have added a definition of “Responsible Official” to each of the final permits.
Two commenters supported the proposed rule's approach of requiring each source to post the current Approval of the Request for Coverage and to label each affected emissions unit and associated air pollution control technology with the identification numbers listed in the approval. One commenter recommended that the general permit and the most current approval of the request for coverage for the permitted source “must be made available immediately upon request,” as opposed to “must be posted.” The commenter stated that it was not necessary to label the air pollution control equipment, as the description and serial numbers are provided in the application. The EPA acknowledges the support of the commenters with respect to posting the Approval of the Request for Coverage. Upon review of comments received related to the posting of the general permit in addition to the Approval of the Request for Coverage, the EPA is revising the permits to exclude the requirement that the general permits must be posted. Posting of the Approval of the Request for Coverage is required under 40 CFR 49.156(e)(6), but general permits themselves are not required under the regulation to be posted and only need to be available on site as needed. Regarding the labeling of emission units and air pollution control equipment, identification and labeling of these units is needed to facilitate identification by inspectors of equipment covered under a general permit without the need to refer to the application. Therefore, the EPA is finalizing the labeling requirements as proposed.
Three commenters supported incorporating the Approval of the Request for Coverage into the general permit, in order to ensure that the revision procedures in 40 CFR 49.159 would apply to revisions a Reviewing Authority may need to make to a previously issued Approval of a Request for Coverage. Two commenters recommended that the EPA consider amending 40 CFR 49.156 to include a provision that specifically allows for revisions to a previously issued Approval of a Request for Coverage under a general permit. Upon review of comments received related to incorporating the Approval of the Request for Coverage into the general permits, the EPA is finalizing each general permit to include the proposed language in the draft general permits related to incorporating the Approval of the Request for Coverage into each permit.
In addition, we have added a provision to all of the permits to address those circumstances that can cause a permit to become invalid under 40 CFR 49.156(e)(8). In the general permits in this action, the provision can be found in Section 6.
One commenter objected to the visible emissions 10 percent opacity limit included in the draft concrete batch plants general permit. The commenter argued that the limit would create an unequal playing field with existing concrete batch facilities subject to the Federal Air Rules for Reservations' (FARR) requirements for limiting visible emissions (40 CFR 49.124). The EPA acknowledges that the draft visible emissions opacity limit in the final “General Air Quality Permit for New or Modified Minor Source Concrete Batch Plants” (10 percent) is more stringent than the opacity limit provided for facilities in the FARR.
Another commenter recommended that the EPA consider the requirements in the South Coast Air Quality Management District (SCAQMD) Rule 1155—Particulate Matter from Control Devices (used to establish requirements for permitted PM air pollution control devices) and Rule 1157—PM
One commenter supported the use of the draft general permit for concrete batch plants to authorize relocation of a concrete batch plant to a pre-approved site location. The EPA recognizes that concrete batch plants are portable and may require the flexibility to relocate to additional areas in the future. We have revised the Request for Coverage Form for the final “General Air Quality Permit for New or Modified Concrete Batch Plants in Indian Country” to clarify that the facility may seek up-front approval of multiple locations and that additional locations may be added in the future.
One commenter requested that the EPA consider the requirements in three SCAQMD Rules that apply to boilers, including Rule 1146—Emissions of Oxides of Nitrogen from Industrial, Institutional and Commercial Boilers, Steam Generators, and Process Heaters; Rule 1146.1—Emissions of Oxides of Nitrogen from Small Industrial, Institutional, and Commercial Boilers, Steam Generators, and Process Heaters; and Rule 1146.2—Emissions of Oxides of Nitrogen from Large Water Heaters and Small Boilers and Process Heaters. The commenter stated that these rules limit emissions of NO
We disagree that these boiler requirements should apply in all areas, as suggested by the commenter. The limits suggested by the commenter are not typically associated with attainment areas or Marginal, Moderate, or Serious ozone nonattainment areas. No changes were made to the final “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country,” as a result of this comment.
Two commenters expressed confusion regarding the reference to Table 1 of the New Source Performance Standard (NSPS), 40 CFR part 60, subpart JJJJ, in the draft spark ignition engines general permit. One commenter noted that it is unclear whether the EPA is limiting the use of engines ≥100 hp to only those manufactured after the dates incorporated from Table 1 to 40 CFR part 60, subpart JJJJ, in the draft spark ignition engines general permit, or if the specified emission limits from Table 1 must be met regardless of the date of engine manufacture. Another commenter stated that the emission limits only appear to apply to engines manufactured after 2010. One commenter noted that this would exclude other newer engines and would be more restrictive than the NSPS for spark ignition engines (NSPS, 40 CFR part 60, subpart JJJJ). The commenter also stated that the draft emission limits from Table 1 are appropriate for new, modified, or reconstructed engines after July 1, 2010, or January 1, 2011, but are not appropriate for older existing engines not subject to the spark ignition engines NSPS (40 CFR part 60, subpart JJJJ) or those engines subject to the NSPS after 2007, but before the 2010 or 2011 dates listed in Table 1. The commenter asserted that, for NSPS engines, all of the emission limits and dates in Table 1 should apply to engines ≥100 hp, and that, for non-NSPS engines, emission controls should be no more stringent than those required in National Emission Standards for Hazardous Air Pollutants (NESHAP) in 40 CFR part 63, subpart ZZZZ, for existing engines. Another commenter stated that the general permits should allow for the use of existing engines in attainment areas. Commenters recommended that the EPA consider the Texas Commission on
The EPA acknowledges that our draft general permit did not clearly state our intent with regard to the types of non-emergency spark ignition engines eligible to operate under the draft general permit for spark ignition engines. We are revising the final “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country” to clarify this issue. As a result, the requirements applicable to existing non-emergency engines in the NESHAP at 40 CFR part 63, subpart ZZZZ, are not needed in the general permit. The EPA disagrees with the commenter's suggestion that the use of engines manufactured prior to these dates should be allowed for attainment areas. Given the types of stationary sources we expect to be eligible for the final spark ignition engines general permit, we continue to determine that pre-2010 or pre-2011 engines should not be eligible for this permit. For this permit, where the covered stationary sources will mainly consist of non-emergency engines, it is necessary to limit the types of engines eligible to operate under the permit to those with the most current technology to be protective of the National Ambient Air Quality Standards (NAAQS), even in attainment areas. We note that we have not taken this approach for all of the general permits. For example, the general permits for hot mix asphalt plants; stone quarrying, crushing, and screening operations; and concrete batch plants allow for the use of existing compression ignition non-emergency engines. However, in those cases the engines covered are smaller and are not the primary equipment (and, thus, emissions) at the source.
The Texas Commission on Environmental Quality's Permit by Rule for engines found in 30 Texas Air Code section 106.512 suggested by the commenter appears to apply to a broader group of stationary sources (
We are clarifying each of the draft documents for the spark ignition and compression ignition engines general permits to better identify the types of sources that are eligible for these permits. Additionally, the EPA did not intend that the draft engines permits would apply to sources where non-exempt emergency engines are present (alone or in combination with other emissions sources),
One commenter stated that the engines general permits reference certain certification or emission requirements at 40 CFR part 89, 40 CFR part 90, 40 CFR part 1048, and Table 1 to 40 CFR part 60, subpart JJJJ, which contain complex language that may require engine operators to conduct legal analytical work. The commenter requested that the EPA list these requirements more succinctly in order to help tribal operators determine whether their sources are subject to certain requirements and what the requirements are. The commenter also requested that the EPA clarify the applications to make them as easy to understand as possible, noting that tables would be easier to follow than text.
The EPA acknowledges that the language contained in the engine regulations can be complex and potentially difficult for individual owners or operators of engines to understand. This is why the EPA has generally designed the permit requirements for engines to require the owner or operator to simply install certified engines. We are revising the draft general permit for spark ignition engines to specifically list the applicable emission standards from Table 1 to 40 CFR part 60, subpart JJJJ, instead of incorporating them by reference.
Two commenters stated that, in the draft compression ignition engines general permit, the EPA excludes existing compression ignition engines in Condition 19, which requires non-emergency engines to be model year 2014 or later. The commenters argued that requiring sources to install only new engines would be inappropriate and inconsistent with existing engine rules. One commenter further stated that no state prohibits the relocation of existing engines, which would be prohibited under the proposed rule. The EPA notes that the commenters seem to misinterpret the intent of the draft permits for engines. These general permits are intended for a limited set of stationary sources—those consisting primarily of non-emergency engines. We generally expect the final “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country” and the final “General Air Quality Permit for New or Modified Minor Source Compression Ignition Engines in Indian Country” to be used by sources in Indian country that, for example, provide electricity or pump groundwater in areas where power from the grid is not available. The general permits are not intended to be used by all source categories with non-emergency engines. Each permit is intended for a particular source category. We are clarifying each of the documents for the spark ignition and compression ignition permits to better identify the types of sources likely to be eligible for these permits. Finally, we note that the general permits for engines do not prohibit relocation of engines. While we limit the types of engines that can be used under the permits, engines that meet the permit requirements may be relocated to a new or modified, permitted stationary source.
Three commenters expressed the view that including compliance requirements for emergency spark ignition engines in a compression ignition engine permit and compliance requirements for emergency compression ignition engines in a spark ignition engine permit creates confusion. One commenter remarked that it is unclear
Two commenters asserted that stack testing procedures for emergency engines are inappropriate and not required by states. Instead, the commenters recommended that the EPA include maximum non-emergency run time hour limits (
Two commenters questioned the specific testing procedures outlined in the engines general permits. One commenter stated that the outlined procedures for stack testing were contradictory with regard to engine load during testing. In the draft spark ignition engines general permit, another commenter stated that emissions testing requirements should allow portable analyzer testing and test methods other than the EPA reference methods. The commenter stated that allowing portable analyzers is necessary due to the remote and dispersed nature of many engines. The EPA recognizes that some engines typically do not operate within 10 percent of peak load. However, the “within 10 percent peak load” requirement was included in the permit to be consistent with the testing requirements in the applicable NSPS. This allows testing conducted under the NSPS to be used for the general permit as well. The EPA has generally included a requirement in our general permits to ensure testing is conducted under typical operating conditions to avoid testing being conducted, for example, during startup or malfunction. We do not find the two provisions to be contradictory. Regarding the use of portable analyzers, the draft general permit for spark ignition engines provides for the use of test methods identified in 40 CFR part 60, appendix A, which allow the use of a portable analyzer. In addition, the draft spark ignition engines general permit specifically references the use of portable analyzers. No changes have been made to the final “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country,” as a result of this comment.
One commenter stated that the requirement to monitor fuel use for each engine on a monthly basis is not practical, given the many remote locations where engines are used for oil and gas production. The commenter further asserted that because the standards are based on an emissions/hp-hour basis, fuel measurement is unnecessary to demonstrate compliance. The EPA notes that these general permits do not apply to engines in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector for which the EPA has issued a separate, final rulemaking in the form of a FIP.
One commenter requested that the EPA provide clear direction for authorization of in-kind replacement engines. The commenter noted that engines are frequently swapped out with an in-kind engine to minimize compressor downtime, and that these replacements have the same or lower emissions than the engine being replaced. Two commenters noted that existing compressors may be moved and installed at another site to meet production needs. One commenter argued that the EPA must allow for relocation of existing engines without requiring them to be retrofitted. Another commenter suggested that the EPA consider the permit by rule and general permitting programs run by the states of Texas, Colorado, and Louisiana as models to address relocation of existing engines.
Because these commenters represent the oil and natural gas industry, the EPA infers that the commenters are referring to engines used in the oil and natural gas sector. The EPA notes that these general permits do not apply to engines in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector for which the EPA has issued a separate, final rulemaking in the form of a FIP.
In the Federal Indian Country Minor NSR rule, we indicated our understanding that, in oil and gas sector operations, moving a single piece of equipment from one facility to another, or replacing a piece of equipment with a new one, can occur on a regular basis. For clarification purposes, we believed that it would be beneficial to both sources and reviewing authorities for us to list the different situations involving a piece of equipment (a unit) that we believed would be most common, and to specify the outcome with respect to minor NSR permitting and registration. In the preamble to the final rule, we listed expected outcomes to provide guidance on how we would address certain “relocation” scenarios. We did, however, indicate that the source owner/operator should still verify with its Reviewing Authority that the scenario provided, and its stated outcome, applies to its case.
One commenter stated that the requirement to “maintain onsite all records required to be kept by this permit” is not practical at unmanned oil and natural gas production facilities. The commenter asked that the requirement be modified to recognize that records for unmanned facilities are normally kept at an office having operational control of the unmanned facility where the engines are located. The EPA notes that these general permits do not apply to engines in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector for which the EPA has issued a separate, final rulemaking in the form of a FIP.
We do not anticipate that sources outside of the oil and natural gas production and natural gas processing segments of the oil and natural gas sector with stationary spark ignition and compression ignition engines will have difficulty meeting the recordkeeping requirements. Therefore, no changes have been made to the final permits as a result of this comment.
Two commenters stated that the reporting requirements in the draft general permits for engines are equivalent to the requirements for major sources subject to Title V. The commenters argued that these requirements are not appropriate for minor or area sources. Specifically, the commenters asserted that deviation reporting, compliance certifications, and requiring signature by a Title V equivalent “responsible official” is overly burdensome to minor sources. The commenters also stated that these requirements would increase the burden on the EPA to review these reports. One commenter asserted that engines that are already affected sources of an NSPS or NESHAP should have no additional requirements (reporting or otherwise).
While the reporting requirements contained in the draft general permits may be similar to reporting requirements of the Title V Program, the EPA disagrees that a change is warranted. In developing the draft general permits, the EPA followed the Federal Indian Country Minor NSR rule, 40 CFR 49.155(a)(5), which identifies reporting requirements that must be included in each permit. The EPA cannot simply rely on assumed existing reporting and other requirements from other rules (
One commenter stated that the timeframe for submittal of performance test reports in the draft engines permits is too short. The commenter noted that performance test reports are typically required to be submitted within 60 days of completion of the test by NSPS and NESHAP requirements for engines. The commenter also asked that stack test reporting required for NSPS and NESHAP satisfy the requirements for minor NSR reporting. In response, the EPA is extending the timeframe for submittal of performance test reports to 60 days for both the final “General Air Quality Permit for New or Modified Minor Source Spark Ignition Engines in Indian Country” and the final “General Air Quality Permit for New or Modified Minor Source Compression Ignition Engines in Indian Country.” This timeframe is consistent with the requirements of 40 CFR part 60, subpart JJJJ, and 40 CFR part 63, subpart ZZZZ. Additionally, we are revising the draft engines general permits to clarify that facilities may satisfy the initial and subsequent stack testing requirements in the general permits by using the initial and subsequent performance tests performed to meet NSPS and NESHAP requirements, assuming the required testing requirements in the permits are met.
Two commenters requested that the engines general permits include provisions to establish a source as synthetic minor for criteria pollutants and/or HAPs. Another commenter asserted that the EPA must require more stringent monitoring, recordkeeping and reporting for these sources.
In our final action signed on April 17, 2015,
Two commenters requested clarification on the proposed FIP or permit by rule considered in the Advance Notice of Proposed Rulemaking.
One commenter representing oil and natural gas sector interests expressed a preference for a permit by rule mechanism for compression ignition and spark ignition engines in lieu of a general permit, and recommended that the EPA consider, as an example, the permit by rule in the Texas Administrative Code, Title 30, Part 1, Chapter 106, Subchapter A, Rule section 106.4, coupled with the engine-specific Permits by Rule 106.511 and 106.512. The commenter stated that a permit by rule allows sources the flexibility to install and operate engines without delays arising from review and approval by permitting authorities. The commenter also pointed out that a primary advantage of implementing a permit by rule or FIP would be that a new federal decision triggering the Endangered Species Act (ESA) and National Historic Preservation Act (NHPA) would not be made each time a source avails itself of the permit by rule or FIP. Regarding the use of a permit by rule or FIP for compression ignition and spark ignition engines, the EPA did not propose the use of these permitting mechanisms in the proposed rule and does not consider their use appropriate at this time. Thus, we did not seek comment on their use at the time of proposal. Furthermore, the draft permits do not apply to engines in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector. The EPA has issued a separate, final rulemaking addressing oil and natural gas production sources, including non-emergency engines located at such sources.
One commenter noted that the preamble description of “graphic arts” does not match the description in the draft general permit and that the draft general permit does not include screen printing and manual and sheet-fed techniques. The EPA has corrected the discrepancy and modified the final questionnaire and Request for Coverage Form to clarify that the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” applies to sheet-fed printing operations.
One commenter recommended that all solvent cleaning operations (except batch loaded cold cleaners) comply with emission standards similar to SCAQMD Rule 1171. The EPA considered SCAQMD rules when developing some of the nonattainment area emission requirements. We have determined that the additional limits and work practice standards not already included in the draft permit should only be added to the requirements for Serious and above ozone nonattainment areas. As a result, we are revising requirements in the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” to include additional emission limits and work practice standards consistent with SCAQMD Rule 1171 that apply only in Serious and above ozone nonattainment areas.
One commenter noted that the term “reasonable time” in Condition 9 of the draft permit is subjective and not easily enforceable, and requested a specific timeframe. The EPA agrees with the commenter and replaced “reasonable time” with “30 days unless another timeframe is specified by the EPA” in the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country.” We have made this change in all of the final permits included in this action.
One commenter recommended that the volatile organic compound (VOC) limits in Condition 17 of the draft general permit for graphic arts and printing operations be changed to grams per liter (g/L) of ink/coating/adhesive less water and exempt compounds. The EPA agrees with the recommendation that the coating content limits in Condition 17 should also be provided in g/L and has added VOC content limits measured in g/L. We also agree with the recommendation that the coating content limits be on an “as applied” basis, excluding water, and have modified the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country,” accordingly. In response to the same comment, we have also added a definition for VOC to the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” to clarify the compounds not included when considering VOC.
One commenter stated that Serious and above ozone nonattainment area VOC limits for inks, coatings and adhesives should be limited, measured and reported in g/L or pounds/gallon (lbs/gal), excluding water and any other compounds exempted by the permitting authority or the local/neighboring air district. The same commenter recommended for all areas that the proposed percent alcohol or percent alcohol substitute limits in Condition 18
The EPA generally agrees with the commenters and has made corresponding changes to the final permit conditions. The EPA agrees with the recommendation that the nonattainment area VOC ink, coating, and adhesive content limits should also be provided in g/L and lbs/gal, which is how we presented the draft VOC content limits for nonattainment areas in the draft permit. We have retained the VOC limits provided in g/L and lbs/gal in the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country.” We also agree with the recommendation that the coating content limits should be on an “as applied” basis, excluding water and other compounds. We have added a definition for VOC to the final permit to clarify the compounds not included when considering VOC. We have also made corresponding changes to the recordkeeping requirements, as appropriate.
One commenter requested that the EPA clarify Condition 21 of the draft general permit to apply only to flexible packaging printing operations. In the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country,” the EPA agrees with the commenter and we have revised the heading for the draft condition that reads “Exemption for Non-compliant Materials” to a new heading, “Exemption for Flexible Packaging Printing Operations,” to clarify that the non-compliant materials exemption is only applicable for flexible packaging printing.
One commenter requested that the frequency of monitoring of the usage of all VOC-containing material (Condition 27 of the draft general permit) be changed from a weekly basis to a daily basis. The EPA agrees with this recommendation as it relates to certain nonattainment areas and we are, accordingly, revising the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” to include a requirement for daily monitoring of VOC usage for Serious and above ozone nonattainment areas. The EPA has concluded that a greater level of monitoring is necessary: (1) To protect air quality in areas that are designated as Serious and above ozone nonattainment; and (2) to ensure a consistent set of requirements across state and tribal areas in common airsheds.
One commenter requested that the EPA add requirements for performance testing at facilities with air pollution control equipment to verify the overall VOC control efficiency and to quantify the NO
One commenter requested that the monthly record requirements in Conditions 31 through 33 of the draft general permit be clarified to specify calendar-monthly records. Although the EPA intended that records be kept on a calendar-monthly basis, we recognize that the draft permit was unclear. We are, therefore, revising the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” to clarify that the recordkeeping requirements are to be kept on a calendar-monthly basis. This means under the final permit each source must update a log of their usage of VOC-containing material and report that usage on a calendar-monthly basis.
One commenter requested that if requirements to conduct additional performance tests are added to the general permit, the EPA should include a requirement for recording the results of each performance test. The EPA agrees that the results of all performance tests should be recorded and the records maintained. As a result, in authorizing the use of add-on controls, we included recordkeeping and reporting requirements for specified performance testing for add-on control equipment.
One commenter recommended that the definition of “coldset” be modified to clarify that coldset printing operations include presses with infrared or other energy curing devices such as ultraviolet dryers. The same commenter recommended that the definition of “heatset” be modified to clarify that coldset printing operations do not include presses with infrared or other energy curing devices such as ultraviolet dryers. The EPA has reviewed these definitions and agrees that the language suggested by the commenter provides additional clarifications that can help facilitate a better understanding of the permit's requirements. We have revised the definitions, accordingly, to add the commenter's suggested language.
One commenter recommended that the definition of “offset lithographic and letterpress printing operation” be modified to be consistent with SCAQMD Rule 1130. The EPA has reviewed this definition and agrees with the language suggested by the commenter because the change provides additional clarification that can help facilitate understanding of the permit's requirements. We have revised the definition accordingly.
One commenter recommended that the EPA add a definition for “exempt compounds,” including compounds in the jurisdiction of neighboring air districts to Indian country (SCAQMD Rule 102). The EPA agrees that the definition of VOCs provided in the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” (that was not provided in the draft permit) should identify “exempt compounds.” We have revised the ink/coating content limits to regulate on an “as applied” basis, excluding water. We have also added a definition for VOC to the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country” to clarify which compounds are not included when considering
One commenter recommended that the EPA include a definition for “fountain solution” and provided a suggestion. The EPA agrees that including such a definition will improve the rule's efficacy and enforceability and agrees that the commenter's proposed definition is appropriate. As a result, we have added the suggested definition for “fountain solution” to the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country.”
One commenter recommended that the EPA include a definition for “grams of VOC per liter of coating (or ink or adhesive), less water and less exempt compounds.” The commenter provided the EPA with a calculation method for VOC content per liter of coating used. The EPA agrees that the information suggested by the commenter will improve the permit's efficacy. We have, therefore, added the information to the Sample Calculations section of the final “General Air Quality Permit for New or Modified Minor Source Graphic Arts and Printing Operations in Indian Country.”
One commenter recommended that the sample calculations in Attachment D of the general permit should include more representative values for heatset lithographic ink. The commenter also noted a typographical error for the VOC retention factor for heatset lithographic ink, which should be listed as 20 percent instead of 30 percent. In addition, the EPA acknowledges that the sample calculations in Attachment D of the permit should reflect more representative values for heatset lithographic inks because it is intended to provide “real world” values. We have modified Attachment D to include more representative values and to correct the erroneous VOC retention factor.
One commenter requested that the EPA add language to clarify that these are uncontrolled VOC emissions. The commenter referenced language in the preamble which indicates that printing presses “would need to be able to demonstrate compliance with the permit (25 tpy VOC) without the consideration of controls.” The same commenter requested that the EPA add language to clarify what equipment “all printing lines” includes (
Two commenters supported the proposal to increase the stringency of the overall tpy emission limitations for all printing lines at a facility based on the increasing classification of the ozone nonattainment area designation. Another commenter asserted that, for nonattainment areas, the EPA should require the most stringent emissions limitation or installation of BACT based on requirements of the neighboring air district, regardless of the facility's PTE or throughput. The commenter argued that emissions generated in these areas would have an effect on the neighboring district's air quality.
The EPA has determined that the VOC content limits in the draft general permit for graphic arts and printing operations effectively limit VOC emissions in nonattainment areas and are consistent with the BACT requirements suggested by the commenter. However, we are also adding add-on control requirements for this source category as an option for complying with the VOC content limits contained in the draft permit. This option provides owners and operators the flexibility to use non-compliant materials, while also protecting air quality. Finally, we note that the EPA has the authority to determine that a particular general permit is no longer sufficient to protect air quality for new or modified sources in a geographic area and, therefore, does not meet the requirements of the Federal Indian Country Minor NSR rule. Such a determination would, for example, consider local air quality conditions, typical control technology and other emission reduction measures used by similar sources in surrounding areas, anticipated economic growth of the area, and/or cost-effective emission reduction alternatives.
One commenter argued that facilities utilizing fuel combustion heating units (
One commenter stated that in nonattainment areas, all facilities should vent ovens to air pollution control equipment with a minimum 95 percent overall VOC control efficiency. The commenter requested that the EPA clarify that in an Extreme ozone nonattainment area (the South Coast and San Joaquin Valley Air Basins), the major source threshold for VOC is 10 tpy. The commenter referenced the SCAQMD BACT for PM and VOC emissions from a heatset lithographic printing press, which requires venting the press oven to air pollution control equipment with a minimum 95 percent overall VOC control efficiency. The commenter noted that the facility VOC emission threshold for a general permit can be as low as 7 tpy from all printing
One commenter recommended, for nonattainment areas, that all solvent cleaning operations (excluding batch loaded cold cleaners) should comply with lower emission standards. The commenter requested that the EPA consider the standards in SCAQMD Rule 1171. The EPA considered SCAQMD rules when developing some of the nonattainment area emission requirements for Serious and above ozone nonattainment areas and concluded that the requirements in SCAQMD Rule 1171 are appropriate for inclusion in the final permit generally because they are necessary to ensure consistency (and, thus, a more level playing field) with requirements in neighboring areas under local requirements. The EPA has, therefore, included the emission standards and specific work practice standards in Rule 1171 referenced by the commenter as requirements in the final permit for sources in nonattainment areas.
One commenter recommended that, at graphic arts and printing operations in nonattainment areas, compression ignition emergency engines should comply with NSPS 40 CFR part 60, subpart IIII, and NESHAP 40 CFR part 63, subpart ZZZZ. The commenter also recommended additional limits on operating hours of up to 50 hours per year for maintenance and testing and 200 hours per year total operation for nonattainment areas. The EPA disagrees with the commenter that compression ignition emergency engines at graphic arts and printing operations in nonattainment areas should meet limits on operating hours in addition to complying with 40 CFR part 60, subpart IIII, and 40 CFR part 63, subpart ZZZZ. Additional operating limits are unnecessary and would conflict with the requirements of the NSPS and NESHAP, which would create an additional, unjustified reporting burden for sources. However, we do agree that in nonattainment areas, emergency engines that are not otherwise exempt from the Federal Indian Country Minor NSR Program should be certified to the EPA's standards in 40 CFR part 60, subpart IIII. The final “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country” has been revised, accordingly.
One commenter stated that prohibiting open burning (Condition 16 in the draft sawmill facilities general permit) conflicts with the FARR open burning rule (40 CFR 49.131). The EPA notes that the condition in the draft general permit only bans open burning at sawmills. It is not intended to prohibit open burning of all kinds, but was included to prevent operators of sawmill facilities from burning waste or other disposed materials on the property of the mill. It does not prohibit open burning at locations other than sawmill facilities and, thus, is consistent with the FARR in that regard. The EPA does not believe that there is a conflict. However, disposal of any waste from sawmill facility activity must be handled in accordance with applicable requirements in all tribal, local and federal regulations and statutes.
One commenter objected to Condition 11 in the draft sawmill facilities general permit, stating that it is not necessary to label emission units and air pollution control equipment with identification numbers, and that serial numbers or the location of the unit should suffice. The EPA believes that the identification and labeling of emission units and air pollution equipment is needed to facilitate identification of equipment covered under the general permit by inspectors. Therefore, we are finalizing the labeling requirements included in the draft permit. It is worth noting that this requirement is consistent with all of the other permits in this final action and in the final action that we finalized in May 2015.
One commenter stated that the pollution control requirements in Conditions 24 to 26 of the draft sawmill facilities general permit are too specific. The EPA disagrees. Specific permit conditions are necessary in order to ensure that the conditions in the general permit are enforceable. No changes have been made to the permit conditions in the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country,” as a result of this comment.
One commenter noted that if a planar mill does not have a baghouse or fabric filter, per Condition 24 of the draft sawmill facilities general permit, they would be required to obtain a source-specific permit. The same commenter stated that, per Condition 25 of the draft general permit, sawmill facilities with uncovered outdoor operations, or with covered operations that do not have a baghouse or fabric filter, would need to obtain a source-specific permit. The same commenter also stated that, per Condition 26 of the draft general permit, sawmill facility operations that are indoors without a baghouse or fabric filter would be required to get a source-specific permit. In all three cases, the EPA agrees and has determined that the use of a baghouse or fabric filter is a reasonable and readily available technology for new or modified sources indoors and covered facilities outdoors. Sources that cannot, or do not wish to, install a baghouse or fabric filter must seek a source-specific permit.
One commenter objected to weekly visible emissions surveys (Conditions 33 and 34 of the draft sawmill facilities general permit). The commenter argued that weekly surveys would be burdensome, especially compared to Title V sawmill facilities that have a quarterly survey frequency. The EPA disagrees with the commenter that weekly visible emission surveys are overly burdensome. They are not resource-intensive to accomplish using Method 22,
One commenter pointed out that Condition 35 of the draft sawmill facilities general permit, which requires an initial performance test for fugitive emissions, references Condition 17 of the draft sawmill facilities general permit, which applies to emissions units and not sources of fugitive emissions. The EPA has corrected the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country,” which inadvertently applied only to affected emission units. We have modified the final permit to also require that sources of fugitive emissions not discharge into the atmosphere any gases that exhibit 20 percent opacity or greater averaged over any consecutive 6-minute period. These changes correct the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country,” which requires an initial performance test to verify compliance with its opacity limitations.
One commenter stated that the testing requirements in Condition 37 of the draft sawmill facilities general permit for emergency engines are excessive, especially for older engines. The EPA disagrees with the commenter that the testing requirements for emergency engines are excessive. The requirements in the permit only apply to engines that have not been certified to the applicable standards in the permit. The testing requirements are necessary to ensure that uncertified engines under the permit comply with applicable limits in the permit.
One commenter recommended revising Condition 40.b. of the draft sawmill facilities general permit to read: “For each kiln, monthly throughput `by species' in Mbf.” The EPA agrees with the commenter's recommendation, which clarifies that records must be kept that reflect the monthly throughput of the individual tree species because different species release differing amounts of VOC. We have modified the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country,” accordingly.
One commenter pointed out a circular reference in Condition 50.c. of the draft sawmill facilities general permit. The commenter is correct that Condition 50.c. in the draft general permit inadvertently contained a circular reference. We have modified the “Annual Reports” Condition in the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country” to refer correctly to the “Deviation Reports” Condition.
One commenter noted that, in the request for coverage for the draft sawmill facilities general permit, when the answer to a question would invalidate the use of a general permit, the instructions sometimes direct the applicant to contact the permitting authority for a source-specific permit. However, in other instances the instructions do not tell the applicant that they do not qualify for the general permit. The EPA acknowledges that not all of the questions on the Request for Coverage Form include a directive to contact the permitting authority for a source-specific permit based on a particular answer. This directive was only included for questions for which a specific “yes” or “no” answer would result in permittees not qualifying for the sawmill facilities general permit. In the case of Question 19 in the draft Request for Coverage Form, which was identified by the commenter as an example, the question requests the distance of the facility from the nearest property boundary or nearest residence. Because we are not finalizing setback requirements for sawmill facilities, this question has been removed from the Request for Coverage Form; therefore, the commenter's concern regarding this particular question is moot.
In the July 17, 2014, proposed rule, we proposed two types of minor NSR preconstruction permits to help streamline permitting of true minor sources that construct or modify in Indian country and that belong to one of six additional source categories. The first type of permit is a general permit and the second type is a permit by rule. As our preferred approach, we made available draft general permits for the six source categories. As an alternative, for graphic arts and printing operations, we requested comment on whether, in lieu of establishing a general permit for the source category, we should instead adopt a permit by rule.
We requested comment on all aspects of a draft general permit or proposed permit by rule for graphic arts and printing operations. We noted that we might not finalize the draft general permit for graphic arts and printing operations, if we finalized a permit by rule for the source category. Alternatively, we indicated that we might opt to finalize both permitting mechanisms for the source category, and might tailor one of the permitting mechanisms to provide authorization to construct or modify true minor sources (
In the proposal, we sought comments on all aspects of the draft implementation tools we provided (
With respect to comments on the appropriateness of utilizing a permit by rule for graphic arts and printing operations, responses are addressed here and in Section 2.0 of the RTC Document. Overall, as a result of the comments received on the proposal and
The EPA is not finalizing a permit by rule, either in lieu of or in conjunction with a general permit, for the graphic arts and printing operations source category for two reasons. First, many sources in this source category are major sources and require synthetic minor source permits in order to gain minor source status. While some of these sources may be true minor sources, the potential variation in size of individual sources warrants including a mechanism for creating synthetic minor sources. The permit by rule is not a mechanism that can be used to create synthetic minor sources; the general permit is a mechanism that can create synthetic minor sources, as it affords the opportunity for the Reviewing Authority to perform a review. The EPA established this approach when we finalized the first set of general permits and permits by rule in May 2015.
The EPA disagrees with the commenter that the use of permits by rule effectively means that sources exceeding the minor source permit threshold are exempt from a permit. We also disagree that the permits by rule are not consistent with the concept of preconstruction permits in the Federal Indian Country Minor NSR rule. A permit by rule establishes a standard set of requirements that must be met by any source commencing construction in reliance on that permit and, thus, serves the same purpose as any other preconstruction permit. The primary difference between a permit by rule and a general permit is procedural, not substantive. As to consistency with the concept of preconstruction permits in the Federal Indian Country Minor NSR rule, the rule specifically authorizes the issuance of the general permits and the permits by rule we have issued thus far.
With respect to comments on finalizing both permitting mechanisms for graphic arts and printing operations, we include responses here and in Section 7.0 of the RTC Document. As noted, we have decided to finalize only a general permit for graphic arts and printing operations, rather than to make both permit types available for the graphic arts and printing operations source category. We are not finalizing the proposed “hybrid” approach for graphic arts and printing operations because the EPA does not believe that sources in the source category are appropriate candidates for permits by rule, particularly since some of them may be major sources seeking synthetic minor status. Furthermore, we believe that having two permit types would add additional complication to administration of the rule with little, if any, apparent benefit. We are not adopting such a hybrid approach.
Finally, the EPA did not receive any comments on the issue of using a streamlined general permit/permit by rule application for graphic arts and printing operations. However, because this permit will serve as a general permit for true minor and synthetic minor sources, we are enhancing the application to request additional details about equipment present at the site. Since applicant sources could potentially be major sources seeking minor source status, we need to ensure that we have sufficient information to be able to make an approval review decision.
In the July 17, 2014, proposed rule, we proposed to change the Federal Indian Country Minor NSR rule at 40 CFR 49.156(e)(4) to shorten the general permit application review process from 90 to 45 days for one source category: Graphic arts and printing operations.
This section provides a brief summary of other significant comments received and our responses. A full summary of the comments received on this subject and our responses are presented in Section 8.0 of the RTC Document.
Two commenters supported the proposal to amend 40 CFR 49.156(e)(4) to shorten the review period to 45 days for the graphic arts and printing operations permit. Conversely, one commenter recommended not reducing the review period since the EPA requires time to: (1) Review the material safety data sheets of graphic arts materials used; (2) review the specifications on gas-fired burners on heatset printing presses and oxidizers; and (3) evaluate internal combustion engines for compliance with NSPS and NESHAP requirements. We agree with the commenter that this source category requires a 90-day review period, particularly since the general permit is also serving as a permit to create synthetic minor sources. Consequently, the EPA is not finalizing revisions to § 49.156(e)(4) to shorten the general permit application review process from 90 to 45 days for the graphic arts and printing operations source category.
In the proposal, we requested comment on various aspects of the EPA's conclusion following its control technology review that, because the control measures in the draft general permits are currently used by other similar sources in other areas of the country, the measures in the draft
This section provides a brief summary of significant comments received and our responses. A full summary of the comments received on this subject and our responses are presented in Section 3.0 of the RTC Document. The EPA is largely retaining the basic approach to the control technology review outlined in the July 17, 2014, proposal.
One commenter expressed confusion over the term “control technology.” The commenter requested the EPA clarify if this refers to add-on controls or if it includes controls that may be part of the equipment itself. In response, we note that the term “control technology” refers to integrated controls, add-on controls and other emissions reduction techniques (
One commenter stated that because the EPA intends to issue general permits at the national level instead of through Regional Administrators, the Agency should require the most stringent requirements applicable in adjacent areas of Indian country. The commenter recommended that the general permits require the use of BACT and the most current version of adjacent area rules and regulations to avoid a competitive disadvantage. The commenter also noted that the EPA may wish to consider making general permits applicable only within one of the EPA Regions, in order to avoid making sources in Indian country subject to more stringent requirements than those in adjacent states.
Regarding the level at which the EPA issues general permits, the commenter is correct that all of the general permits that the EPA has established to date (including this set) have been at the national level. However, we may in the future issue general permits (or permits by rule) on a smaller geographic scale for a particular state or region of the country. In fact, in the first batch of streamlined permits we issued, we indicated that EPA Region 9 will be developing a general permit or permit by rule for areas within California for gasoline dispensing facilities.
Regarding other points made by the commenter, the EPA crafted the minor source general permits to ensure air quality is properly protected and to provide a streamlined approach, where appropriate. We undertook a survey of existing national and state requirements, and reviewed, weighed and compared these requirements to develop general permits that would help provide a level playing field for minor sources in Indian country. The EPA has not necessarily adopted the most stringent of these observed standards, but, rather, has evaluated relevant rules and regulations to determine the most appropriate and commonly employed standards for each source and unit type covered under the Federal Indian Country Minor NSR rule. The EPA has the authority to determine that a particular general permit or permit by rule is no longer sufficient to protect air quality for new or modified sources in a particular geographic area and, thus, does not meet the requirements of the Federal Indian Country Minor NSR rule. Such a determination would consider, for example, local air quality conditions, typical control technology of other emission reduction measures used by similar sources in surrounding areas, anticipated economic growth in the area and/or cost-effective emission reduction alternatives. If the EPA were to make such a determination, it could either issue a revised general permit for use in that area or require sources in that area to obtain source-specific permits. In addition, the EPA Regional Administrators may adopt general permits or permits by rule that apply within those areas.
For the draft general permits for boilers, concrete batch plants, engines, and sawmill facilities, we included permit provisions related to the location of emitting activities relative to the source property boundary. We call these provisions, which are designed to minimize the impacts of emissions, setback requirements. Under a setback requirement, sources may not locate or expand within a specific distance from the property boundary and nearest residences. We proposed that these provisions seemed both reasonable and prudent measures to protect local air quality, and are economically feasible and cost effective.
This section provides a brief summary of significant comments received and our responses. A full summary of the comments received on this subject and our responses are presented in Section 4.0 of the RTC Document.
Two commenters supported the inclusion of setback requirements for boilers, concrete batch plants, spark and compression ignition engines, and sawmill facilities. These commenters requested that the EPA not only apply the setback requirements to schools and nursing homes, but also to other physical locations such as community centers, health care facilities, hospitals, agricultural fields, ball fields, parks, locations designated for cultural and subsistence activities, and waterways. The same commenters requested that the EPA carefully consider each tribe's sovereign right to manage and oversee land use within its own boundaries. The commenters noted that some tribes may not provide for setback requirements where others may already have setback requirements that are less restrictive than those in the draft permits. The commenters recommended that the EPA consult and communicate with tribes on the application of setback requirements and that the EPA insert a provision in the general permits allowing a tribe to obtain a partial or full waiver from the requirements (
Two commenters objected to the inclusion of setback requirements in the stationary compression ignition and spark ignition engines general permits. The commenters argued that the EPA has not demonstrated the need for or provided any data to support setback requirements and that no current NSPS or NESHAP for engines includes similar requirements. The commenters further argued that setting distances to property boundaries is counter to, and conflicts with, federal and state agency requirements for land management and parks and wildlife preserves created to minimize surface disturbance and encroachment on endangered species areas. One commenter noted that specific setback requirements are already included in Indian mineral leases. Another commenter urged that setback regulations have historically been considered “land use” regulation relegated to state and local jurisdictions. The commenters stated that establishing a setback requirement that applies to all of Indian country would create
One commenter did not support the use of physical markers on a property to show compliance with the setback requirements.
Due to the lack of an EPA analysis demonstrating the air quality benefits of requiring setbacks, we lack sufficient information to incorporate them in the final general permits for boilers and emergency engines, concrete batch plants, spark and compression ignition engines, and sawmill facilities. Therefore, the final general permits for these source categories do not contain setback provisions. Nonetheless, the Reviewing Authority retains the discretion to deny the granting of source coverage under the general permits for any source category based on local air quality concerns.
The ESA requires federal agencies to ensure, in consultation with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service (the Services), that any action they authorize, fund, or carry out will not likely jeopardize the continued existence of any listed threatened or endangered species, or destroy or adversely modify the designated critical habitat of such species. The NHPA requires federal agencies to take into account the effects of their undertakings on historic properties—
This section provides a brief summary of significant comments received and our responses. A full summary of the comments received on this subject and our responses are presented in Section 5.0 of the RTC Document. Overall, as a result of the comments we received, we are largely retaining the processes we presented in the proposal with some adjustment in this final action.
Two commenters expressed concerns regarding provisions for listed species and historic properties. One commenter contended that the Bureau of Land Management (BLM) and the Bureau of Indian Affairs (BIA) currently develop a resource management plan for oil and gas activities on Indian lands that triggers ESA and NHPA review. The commenter argued that it is unnecessary to repeat an ESA or NHPA review during the general permit process given that it may rely on this existing review. The commenter further asserted that the proposed provisions would require minor source permit applicants to interface with various federal agencies in the absence of any procedures governing that interaction, and that the legal consequences of certifying compliance with the ESA and NHPA are undefined.
The EPA is aware that new sources locating in Indian country may also need approvals or other authorizations from other federal agencies such as the BIA or the BLM, which may trigger a review under the ESA and/or the NHPA. Such approvals or authorizations by other agencies are, however, separate from the authorization provided in the EPA's minor NSR general permits. However, to avoid duplication of effort, we believe it is appropriate for facilities seeking to be covered under the general permits to use listed species and historic property assessments, analyses, and outcomes obtained through BIA/BLM's separate compliance with the ESA and NHPA in connection with their own actions to satisfy the relevant screening procedures for coverage under the minor NSR general permits. We anticipate that where a separate ESA or NHPA compliance process is undertaken by BIA/BLM in connection with a new source, that process will satisfy the EPA's permit screening procedures.
Therefore, we have modified the listed species procedures in appendix A for endangered and threatened species that are attached to the Request for Coverage Forms to clarify that this approach is the first consideration in the screening process. We believe that this option as a first choice is already clear in the historic property screening procedures and, therefore, we have not revised appendix B in that regard in the historic properties procedures included with the Request for Coverage Forms.
One commenter expressed concerns about the ability of permit applicants to meet the compliance requirements of the ESA and NHPA, citing limitations in time and availability of in-house expertise. The commenter asserted that the process could be costly and requested whether the EPA has assessed the time and cost impacts to comply with the ESA and NHPA. The EPA understands that satisfactorily addressing the screening procedures for threatened and endangered species and historic properties will impose some burden on sources seeking coverage under general permits. However, we have attempted to streamline the screening processes in order to minimize the effort needed to complete them. For example, both sets of procedures have been clarified to make more explicit that sources can, as appropriate, rely on prior assessments performed by other federal agencies to satisfy the procedures.
The Federal Indian Country Minor NSR rule requires the Reviewing Authority to establish annual allowable emission limitations for each affected emissions unit and for each NSR-regulated pollutant emitted by the unit, if the unit is issued an enforceable limitation lower than the PTE of that unit (see 40 CFR 49.155(a)(2)). The EPA included throughput, fuel usage, and materials usage limitations and compliance monitoring requirements in the draft general permits and proposed permit by rule as a means for limiting emissions and demonstrating compliance with those limits.
For the six source categories in this action, some states (but not all) provide both annual tpy allowable emission limitations and throughput limits in their general permits. Other states provide only overall production limits that limit the amount of throughput a facility can process over a period of time. We requested comment on the use of throughput limits as a surrogate for tpy allowable emission limitations, or, alternatively, establishment of annual allowable emission limitations for each pollutant, and the use of throughput limits as surrogate monitoring measures to demonstrate compliance with tpy annual allowable emission limitations.
This section provides a brief summary of significant comments received and our responses. A full summary of the comments received on this subject and our responses are presented in Section 6.0 of the RTC Document. In the final general permits, the EPA has retained the throughput limits contained in the
Two commenters supported the use of throughput production limits as a surrogate for annual tpy emission limits in the draft concrete batch plants general permit. The commenters declared that facilities currently track information about the material they process, and that complying with a throughput limitation would be less costly. One commenter stated that the proposed rule does not provide for different production limits for facilities located in attainment and nonattainment areas for PM, and requested that the EPA consider this issue more closely.
The EPA appreciates the commenters' support for the use of throughput limits. The EPA also appreciates the commenters' concern regarding separate production limits for PM
For the draft boilers general permit, two commenters supported the use of varying capacity limits as a surrogate for annual tpy emission limits based on boiler and process heater size. The commenters supported the use of different capacity limits for process heaters and process heaters and boilers combined located in ozone nonattainment areas. The commenters also supported finalizing two boilers general permits—one intended for smaller, simpler sources using capacity limits, and one for larger, more complex sources using tpy emission limitations and additional monitoring and recordkeeping. The EPA has decided to issue only one final “General Air Quality Permit for New or Modified Minor Source Boilers and Emergency Engines in Indian Country,” which also covers emergency engines. We do not agree that two are needed. We believe that one permit for boilers can accommodate boilers of varying sizes.
Two commenters expressed concerns with the capacity limits included in the draft spark ignition engines general permit. The commenters noted an inconsistency between the engine site capacity limit of 1,750 hp and the emission limits set by reference to Table 1 of 40 CFR part 60, subpart JJJJ. One commenter provided the example that, using the EPA's PTE spreadsheet and a single 1,000 hp 4-stroke lean burn engine, the CO limit of 2.0 grams per hp-hour in Table 1 yields a total annual CO emission PTE of just under 20 tpy, which would allow for up to 5,000 hp site capacity based on a 100 tpy limit. The commenters stated that these issues bring into question whether the draft spark ignition and compression ignition engines permits should include capacity-based limits or emissions-based limits. Both commenters reasoned that emission limits are preferable to capacity limits, because an emission limit approach would allow flexibility for operators to determine how to configure engines. One commenter argued that if the EPA uses capacity limits, then it would seem pointless to also include emission limits or monitoring. The commenter stated that capacity limits are most appropriate for small engines to simplify exclusion from minor source NSR, stating that neither the draft spark ignition engines general permit nor the draft compression ignition engines general permit addressed excluding low emitting small engines. The commenter further argued that the upper limit used should actually be 250 tpy to avoid the PSD Program in attainment areas.
The EPA acknowledges that, in setting the capacity limits in the draft spark ignition engines general permit, the limit was based on the highest emission factor under the NSPS for the various engines types. We also acknowledge that there is significant variability in the emission factors for the different types of engines. Given the differences, we are revising the capacity limits to add a fuel-based capacity limit option for natural gas-fired spark ignition engines. In addition, the draft spark ignition engines general permit does not apply to engines in the oil and natural gas production and natural gas processing segments of the oil and natural gas sector. The EPA has issued a separate, final rulemaking addressing oil and natural gas activities that includes requirements for non-emergency engines.
Regarding excluding small engines, we note that the Federal Indian Country Minor NSR rule exempts stationary internal combustion engines with a manufacturer's site-rated hp of less than 50. The EPA finalized this exemption during the development of the general permits.
Regarding the use of emission limits versus capacity limits, we have retained the capacity limits but we have also added additional flexibility by allowing for the use of synthetic minor fuel limits in lieu of the engine capacity limits. This flexibility is close to the approach suggested by the commenter, as it allows for engines of greater capacity as long as overall fuel use remains below the specified threshold. We consider this approach the best option for the types of owners and operators that we expect to be subject to the permits—striking a balance between flexibility and ease of compliance. Sources needing even greater operational flexibility should consider applying for a source-specific permit. The general permits are intended for common, straightforward permitting actions.
Regarding the upper tpy emission limit used for setting the limits in the permit, we disagree with the commenter's suggestion of using 250 tpy. While the EPA will still determine when sources applying for a general permit need a source-specific permit due to air quality concerns, we do not believe that will occur as often as would be required if we used the upper threshold in attainment areas proposed by the commenter.
Two commenters supported the proposed approach for establishing capacity limits for compression ignition emergency and non-emergency engine sources that differentiate among locations in ozone attainment, unclassifiable, or Marginal/Moderate ozone nonattainment areas. The commenters requested that the EPA explain why the draft general permit for stationary spark ignition engines does not use a similar approach. One commenter stated that nonattainment minor source permitting should be
Regarding the comment that nonattainment minor source permitting should be based on an emissions inventory evaluation and modeling, in this instance it is not necessary to develop an emissions inventory or perform ambient air modeling in order to establish minor source permits in attainment or nonattainment areas that are protective of air quality. The general permits in this action are intended to prevent the construction of sources that would interfere with attainment or maintenance of the NAAQS in attainment and nonattainment areas. However, some of the general permits in this action do not cover all potential nonattainment areas because, in order to protect air quality in such areas, we would have had to construct an overly stringent, potentially unworkable permit for such sources in such areas. A better alternative is to direct such sources to work with the Reviewing Authority to develop a more workable, source-specific permit. Moreover, the Reviewing Authority has the discretion under the Federal Indian Country Minor NSR rule to not grant coverage under a general permit to a particular source or in a particular area if there is a concern that the general permit will not be protective of air quality in the area.
Three commenters supported the EPA's draft emission limitations for sawmill facilities, including a limitation of 25 million board feet on a 12-month rolling basis and a total tpy VOC emission limitation that becomes more stringent based on the increasing classification of the ozone nonattainment area in which the facility is located. However, one commenter asserted that it was unlikely a sawmill facility would be a true minor NSR facility and approach 80 tpy VOC without triggering the major source threshold for HAPs (Condition 23 of the draft sawmill facilities general permit). Regarding the comment that a source may trigger the major source threshold for HAPs prior to reaching the 80 ton per year/12-month rolling emission limits, the EPA has determined that such a scenario could arise and has added a synthetic minor limit for HAP emissions in the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country.”
One commenter requested that the EPA use a 12-month rolling total limit for the production limits and emissions limitations in Conditions 19, 23 and 41 of the draft sawmill facilities general permit. The commenter also expressed concern that new sources in operation for less than 12 months would not be able to determine compliance with the draft conditions for the first 11 months. The commenter provided draft language for consideration.
The EPA notes that the draft sawmill facilities permit uses a 12-month rolling total for the production limits and emissions limitations in Conditions 19, 23, and 41 of the draft general permit. Regarding the concern that new sources would have difficulty determining compliance with the draft conditions in the first 11 months, the general permit requires that sources maintain records of monthly production and monthly VOC emissions and submit an annual report that evaluates the source's compliance status with the emission limitations and standards. This will allow a source to evaluate its eventual compliance with the 12-month rolling total well before the 12th month. We have not modified the final “General Air Quality Permit for New or Modified Minor Source Sawmill Facilities in Indian Country,” as suggested by the commenter.
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB Control Number 2060-0003. The general permits finalized in this action do not impose any new obligations or enforceable duties on any state, local or tribal government or the private sector. This action merely establishes general permits to aid sources in satisfying the requirements of the Federal Indian Country Minor NSR rule.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. The EPA analyzed the impact of streamlined permitting on small entities in the Federal Indian Country Minor NSR rule.
This action does not contain any unfunded mandate, as described in the UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. Sources that choose to use one or more of the general permits finalized in this action must comply with the requirements contained therein; however, no source is required
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. The EPA conducted outreach on the July 17, 2014, proposal via on-going monthly meetings with tribal environmental professionals in the development of this final action. The EPA offered consultation to elected tribal officials immediately after proposal on June 14, 2014, via letter to 566 tribes to provide an opportunity for meaningful and timely input into the development of this regulation. No tribal officials requested consultation on this action.
Two commenters took exception to the EPA's claim that the proposed rule would “not impose duties or responsibilities on tribes.” The commenters noted that several Indian tribes own and operate facilities covered under source categories identified in the draft rule, and, thus, the draft rule will impose duties or responsibilities on some tribes. The commenters requested that the EPA review the number of tribes that own and operate facilities represented by the source categories listed in the proposed rule and determine the extent of the duties and responsibilities imposed on the tribes. The EPA disagrees with the assertion that the rule “imposes duties or responsibilities on tribes.” As noted in the preamble to the proposed rule, the EPA concluded that the rule would not impose duties or responsibilities on tribes, although it will have tribal implications. Some tribes may own affected facilities in the source categories for which we are issuing general permits via this action. However, this action merely provides general permits to aid interested minor sources in Indian country in satisfying the already existing requirement under the Federal Indian Country Minor NSR rule that they obtain a minor source permit. This action does not impose any requirements on sources in these source categories that may need to obtain a minor source permit to construct in Indian country. The use of the general permits in this final action is optional; they do not impose any compliance requirements on any source unless and until the EPA grants coverage under one of the permits to a source.
This action reflects tribal comments on and priorities for developing general permits and permits by rule in Indian country. The RTC document details all of the comments we received on the July 17, 2014, proposal from tribal and other entities. We received comments from 5 tribal commenters. We have responded favorably to tribal comments in the several areas, including:
• General support for the establishment of general permits for the six categories;
• Structure and general requirements of the draft general permits;
• Authorizing multiple locations for the use of certain general permits;
• Specific provisions of the draft spark ignition and compression ignition engines general permits;
• Specific provisions of the draft sawmill facilities general permit;
• Utilizing a permit by rule for graphic arts and printing operations; and
• Use of throughput limits and capacity limits.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in Section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
The final action involves technical standards. The EPA has decided to use the EPA Methods 5, 7, 9, 10, 18, 22 and 25A of 40 CFR part 60, appendix A.
1. ANSI/ASME PTC 19.10-1981 part 10 “Flue and Exhaust Gas Analyses” (alternative to the EPA Method 7);
2. ASTM D7520-09 “Standard Test Method for Determining Opacity of a Plume in the Outdoor Ambient Atmosphere” (alternative to the EPA Method 9); and
3. ASTM D6420-99 (2010) “Test method for Determination of Gaseous Organic Compounds by Direct Interface Gas Chromatography/Mass Spectrometry” (alternative to the EPA Method 18).
We are not finalizing these in this rulemaking. The use of these voluntary consensus standards would not be practical with applicable law due to a lack of equivalency, documentation, validation data and other important technical and policy considerations. The EPA did not receive comments that have caused us to alter the standards and methods in the final permits.
The EPA believes that the human health or environmental risk addressed by this action will not have potential, disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action does not affect the level of protection provided to human health or the environment. Rather, this final rule implements certain aspects of the Federal Indian Country Minor NSR rule. Therefore, this final action will not have a disproportionately high and adverse human health or environmental effects on minorities, low-income or indigenous populations in the United States.
Our primary goal in developing this program is to ensure that air resources in Indian country will be protected in the manner intended by the CAA. We believe that when sources have permits
This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Environmental protection, Administrative practices and procedures, Air pollution control, Indians, Indians-law, Indians-tribal government, Intergovernmental relations, Reporting and recordkeeping requirements.
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is approving changes to the Kentucky State Implementation Plan (SIP) submitted by the Commonwealth of Kentucky, through the Kentucky Energy and Environmental Cabinet, on May 3, 2016. This SIP revision removes Stage II vapor control requirements for new and upgraded gasoline dispensing facilities in the State and allows for the decommissioning of existing Stage II equipment in Boone, Campbell and Kenton Counties in Kentucky (hereinafter referred to as the “Northern Kentucky Area” or “Area”). EPA determined that Kentucky's May 3, 2016, SIP revision is approvable because it is consistent with the Clean Air Act (CAA or Act).
This rule will be effective November 14, 2016.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2016-0312. All documents in the docket are listed on the
Kelly Sheckler, Air Regulatory Management Section, Air Planning and Implementation Branch, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Sheckler's telephone number is (404) 562-9222. She can also be reached via electronic mail at
On February 3, 1998, the Commonwealth of Kentucky submitted a SIP revision to address the Stage II requirements
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 Kentucky regulation 401 KAR 59:174—
EPA is taking final action to approve the May 3, 2016, revision to Kentucky Air Regulation 401 KAR 59:174, submitted by the Commonwealth of Kentucky. This action removes Stage II vapor control requirements for new and upgraded gasoline dispensing facilities and allows for the decommissioning of existing Stage II equipment. EPA has determined that Kentucky's May 3, 2016, SIP revision related to the State's Stage II rules is consistent with the CAA and EPA's regulations and guidance related to removal of Stage II requirements from the SIP and that these changes will not interfere with any applicable requirement concerning attainment or any other applicable requirement of the CAA, and therefore satisfy section 110(l).
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 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 13, 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.
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve the State Implementation Plan (SIP) submission, submitted by the State of North Carolina, through the North Carolina Department of Environmental Quality, Division of Air Quality (NCDAQ) on August 23, 2013, to demonstrate that the State meets certain infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO
This rule is effective November 14, 2016.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2015-0362. All documents in the docket are listed on the
Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-8726. Mr. Richard Wong can also be reached via electronic mail at
On January 22, 2010 (published at 75 FR 6474, February 9, 2010), EPA promulgated a new 1-hour primary NAAQS for NO
In a proposed rulemaking published on July 20, 2016 (81 FR 47115), EPA proposed to approve North Carolina's 2010 1-hour NO
With the exception of the elements related to state boards of section 110(a)(2)(E)(ii), the PSD permitting requirements for major sources of sections 110(a)(2)(C), and (J), and the interstate requirements of 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), EPA is taking final action to approve North Carolina's infrastructure SIP submission for the 2010 1-hour NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
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 13, 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.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes time-limited tolerances for residues of the fungicide isofetamid,
This regulation is effective October 14, 2016. Objections and requests for hearings must be received on or before December 13, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0429, is available at
Michael L. Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0429 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 13, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0429, by one of the following methods:
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•
•
EPA, on its own initiative, in accordance with FFDCA sections 408(e) and 408(l)(6) of, 21 U.S.C. 346a(e) and 346a(1)(6), is establishing time-limited tolerances for the fungicide, isofetamid,
Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on FIFRA section 18 related time-limited tolerances to set binding precedents for the application of FFDCA section 408 and the safety standard to other tolerances and exemptions. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative,
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA
Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” EPA has established regulations governing such emergency exemptions in 40 CFR part 166.
The Washington State Department of Agriculture (WSDA) requested an emergency exemption for the use of isofetamid on blackberries, blueberries, and raspberries to control gray mold caused by
As part of its evaluation of the emergency exemption application, EPA assessed the potential risks presented by residues of isofetamid in or on caneberry subgroup 13-07A and bushberry subgroup 13-07B. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in FFDCA section 408(l)(6). Although these time-limited tolerances expire on December 31, 2019, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on caneberry subgroup 13-07A and bushberry subgroup 13-07B after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by these time-limited tolerances at the time of that application. EPA will take action to revoke these time-limited tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.
Because these time-limited tolerances are being approved under emergency conditions, EPA has not made any decisions about whether isofetamid meets FIFRA's registration requirements for use on caneberry subgroup 13-07A and bushberry subgroup 13-07B or whether permanent tolerances for this use would be appropriate. Under these circumstances, EPA does not believe that this time-limited tolerance decision serves as a basis for registration of isofetamid by a State for special local needs under FIFRA section 24(c). Nor does this tolerance by itself serve as the authority for persons in any State other than Washington to use this pesticide on the applicable crops under FIFRA section 18 absent the issuance of an emergency exemption applicable within that State. For additional information regarding the emergency exemption for isofetamid, contact the Agency's Registration Division at the address provided under
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”
Consistent with the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure expected as a result of this emergency exemption request and the time-limited tolerances for isofetamid,
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for isofetamid used for human risk assessment is discussed in Unit III.B of the final rule published in the
1.
i.
ii.
iii.
iv.
2.
Based on the Pesticide Flooded Application Model (PFAM) and the Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of isofetamid for chronic exposures for non-cancer assessments are estimated to be 110 ppb for surface water and 43 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 110 parts per billion (ppb) was used to assess the contribution to drinking water.
3.
Isofetamid is currently registered for the following uses that could result in residential exposures: Turfgrass including golf courses, residential lawns, and recreational turfgrass. Since there may be residential use sites, residential handler exposure and risk estimates were calculated for all possible residential exposure scenarios. Given that there is no dermal toxicity concern in regard to isofetamid, the residential handler assessment only includes the inhalation route of exposure. Residential handler exposure is expected to be short-term in duration as a maximum of eight applications are allowed per year. Thus, intermediate-term exposures are not likely because of the intermittent nature of applications by homeowners. Unit exposure values and estimates for area treated or amount handled were taken from the Agency's 2012 Standard Operating Procedures for Residential Pesticide Exposure Assessment (Section 3: Lawns/Turf). The algorithms used to estimate exposure and dose for residential handlers can be found in the 2012 Residential SOPs (Section 3: Lawns/Turf). For all residential exposure scenarios, isofetamid risk estimates are not of concern. Short-term inhalation MOEs range from 850,000 to 18,000,000.
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at:
4.
EPA has not found isofetamid to share a common mechanism of toxicity with any other substances, and isofetamid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that isofetamid does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
1.
2.
3.
i. The toxicity database for isofetamid is complete.
ii. There is no indication that isofetamid is a neurotoxic chemical and
iii. There is no evidence that isofetamid results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and average (mean) level field trial residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to isofetamid in drinking water. EPA used similarly conservative assumptions to assess postapplication exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by isofetamid.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
3.
Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential isofetamid exposures result in aggregate MOEs of 24,000 and 3,900 for adults and children (1-2 years old), respectively. Because EPA's level of concern for isofetamid is a MOE of 100 or below, these MOEs are not of concern.
4.
5.
6.
An adequate enforcement methodology (liquid chromatography with tandem mass spectrometry (LC-MS/MS)) is available to enforce the tolerance expression.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established any MRLs for isofetamid.
Therefore, time-limited tolerances are established for residues of isofetamid, isofetamid, in or on caneberry subgroup 13-07A and bushberry subgroup 13-07B at 4.0 and 5.0 ppm. These tolerances expire on December 31, 2019.
This action establishes tolerances under FFDCA sections 408(e) and 408(l)(6). The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(b)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of the insecticide pyridaben in or on multiple commodities which are identified and discussed later in this document. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective October 14, 2016. Objections and requests for hearings must be received on or before December 13, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number HQ-EPA-OPP-2015-0390, is available at
Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number HQ-EPA-OPP-2015-0390, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA has revised certain proposed tolerance levels, corrected crops/crop group definitions, as needed, and modified the tolerance expression for pyridaben to comply with current EPA policies. The reason for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for pyridaben including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with pyridaben follows.
EPA has evaluated the available toxicity database and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
In subchronic and chronic oral toxicity studies in rats and mice, the adverse effects were decreased body weight and food consumption; in dogs, toxicity consisted of increased incidences of clinical signs (
Susceptibility was observed in the rat prenatal developmental toxicity and rat developmental neurotoxicity studies. In the rat prenatal developmental toxicity study, fetal toxicity (
In the acute neurotoxicity study in rats, animals had increased incidences of clinical signs (
Pyridaben has been classified as “not likely to be carcinogenic in humans” based on the results from carcinogenicity studies in rats and mice. The mutagenicity studies do not indicate increased mutagenic potential in the battery of in vivo and in vitro assays.
Specific information on the studies received and the nature of the adverse effects caused by pyridaben as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for pyridaben used for human risk assessment is shown in Table 1 of this unit.
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i.
Such effects were identified for pyridaben. In estimating acute dietary exposure, EPA used the Dietary Exposure Evaluation Model-Food Commodity Intake Database (DEEM-FCID
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Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:
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The Agency estimated the PCT for chronic exposure for existing uses as follows: almonds 2.5%; apples 20%; cherries 2.5%; grapefruit 35%; grapes 5%; lemons 2.5%; nectarines 2.5%; oranges 10%; peaches 10%; pears 35%; pecans 2.5%; plums/prunes 5%; tangelos 15%; tangerines 25%; tomatoes 2.5%; and walnuts 5%.
In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6-7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.
The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which pyridaben may be applied in a particular area.
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The EPA's Tier II water models have been updated and applied in the drinking water analysis for total residues of concern (TRC) of pyridaben. The Pesticide Water Calculator (PWC), Ver.1.5001, has replaced the PE5 shell for the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) used previously to generate surface water estimated drinking water concentrations (EDWC) in dietary risk assessments. In addition, the PRZM-Ground Water (PRZM GW) model, version 1.07, has replaced Screening Concentration in Ground Water (SCI-GROW), which was used to generate groundwater EDWCs. These latest versions of the PWC and PRZM-GW models not only analyze for pyridaben, but its two degradates PB-7 and P-9, residues of concern for drinking water.
Based on the PWC and PRZM GW, the maximum acute surface water EDWCs of pyridaben TRC for acute exposures are estimated to be 12 parts per billion (ppb) for surface water and an indeterminately low concentration for ground water.
For chronic exposures for non-cancer assessments are estimated to be 0.91 ppb for surface water and an indeterminately low concentration for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.
For acute dietary risk assessment, the water concentration value of 12 ppb was used to assess the contribution to drinking water.
For chronic dietary risk assessment, the water concentration of value 0.91 ppb was used to assess the contribution to drinking water.
3.
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at:
4.
EPA has not found pyridaben to share a common mechanism of toxicity with any other substances, and pyridaben does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that pyridaben does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine
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Increased susceptibility following prenatal exposure in the rat prenatal developmental toxicity studies was observed including fetal toxicity (
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i. The toxicity database for pyridaben is complete.
ii. Although there are signs that pyridaben causes neurotoxic effects, a developmental neurotoxicity study in rats demonstrated no observed neurotoxicity effects in offspring up to the HDT of 17.7 mg/kg/day. Furthermore, the RfD of 0.44 mg/kg/day for acute dietary exposures is protective of the HTD in the developmental neurotoxicity study. Additionally, the acute RfD is based on clinical signs (piloerection, hypoactivity, tremors and partially closed eyes) in adults that could be signs of neurotoxicity, however tissue analysis did not confirm neurotoxicity. Similarly, the chronic RfD of 0.022 mg/kg/day (based on parental and pup body weight decreases in a reproductive study) is protective of the impaired righting reflex observed in the subchronic neurotoxicity study at 8.5 mg/kg/day. There is no need to retain the FQPA 10X to account for any residual uncertainties concerning neurotoxicity.
iii. There is evidence that pyridaben results in increased susceptibility following prenatal exposure in the rat prenatal developmental toxicity and rat developmental neurotoxicity studies. There was no evidence for increased susceptibility following pre- or post-natal exposure in the rat reproduction and fertility effects study since the decreased pup body weight is not considered to be more severe than decreased parental body weight. EPA concluded that selected endpoints based on the rat reproduction and fertility effects study's NOAELs/LOAELs are protective of the susceptibility observed in the rat prenatal developmental toxicity and rat developmental neurotoxicity studies.
iv. There are no residual uncertainties identified in the exposure databases. The pyridaben exposure databases are complete or are estimated based on data that reasonably account for potential exposures. The chronic dietary food exposure assessment was based on anticipated residue estimates derived from proposed and established tolerance levels and PCT assumptions and conservative ground water drinking water modeling estimates. All of the exposure estimates are not likely to result in underestimated exposure and risks posed by pyridaben.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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Adequate enforcement methodology (gas chromatography with mass spectrometry (GC/MS) detection using a modified version of BASF Method D9312A) is available to enforce the tolerance expression.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the
There are no Codex maximum residue levels (MRLs) established for residues of pyridaben on the commodities for which tolerances are being established in this action.
In order to harmonize tolerances with Canada and avoid trade irritants, EPA is establishing pyridaben tolerances as follows: (1) Fruit, stone, group 12-12 at 3.0 ppm, instead of at 2.5 ppm as requested; (2) Fruit, citrus, group 10-10 at 0.9 ppm, instead of at 0.5 ppm as requested; and (3) Fruit, small, vine climbing, except fuzzy kiwifruit subgroup 13-07F at 2.0 ppm, instead of at 1.5 ppm, as requested.
Finally, in accordance with EPA's policy to update its tolerance expressions where applicable, EPA is revising the tolerance expression to clarify that (1) as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of pyridaben not specifically mentioned; and (2) compliance with the specified tolerance levels is to be determined by measuring only the specific compounds mentioned in the tolerance expression.
Therefore, tolerances are established for residues of the insecticide pyridaben, [2-tert-butyl-5-(4-tert-butylbenzylthio)-4-chloropyridazin-3(2
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(c)
Centers for Medicare & Medicaid Services (CMS), HHS.
Clarification; correction.
This document corrects a technical error that appeared in the document published in the
October 14, 2016.
Don Thompson, (410) 786-6504.
In FR Doc. 2016-01309 of January 22, 2016 (81 FR 3727), there was an error that is identified and corrected in the Correction of Errors section below. The provisions of this correction document are applicable as if they had been included in the document published January 22, 2016.
On page 3728, in our discussion of the cost-to-charge ratios estimates, we made an error regarding the fiscal year (FY).
In FR Doc. 2016-01309 of January 22, 2016 (81 FR 3727), make the following correction:
1. On page 3728, second column, first partial paragraph, line 12, the phrase “FY 2004 using actual market basket” is corrected to read “FY 2002 using actual market basket”.
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Interim final rule.
This interim final rule (IFR) establishes regulations implementing the emergency order authority conferred on the Secretary of Transportation (Secretary) by the “Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016” (PIPES Act). These regulations are mandated by the PIPES Act and, in accordance with the Act, PHMSA is establishing procedures for the issuance of emergency orders that will be used to address an unsafe condition or practice, or combination of unsafe conditions or practices, that pose an imminent hazard to public health and safety or the environment. By implementing this statutory mandate, PHMSA will enhance its existing enforcement authority to respond immediately to conditions or practices that exist in a subset of, or across, the pipeline industry. This IFR solely affects agency enforcement procedures to implement the emergency order provisions of the law and; therefore, this rulemaking results in no additional burden or compliance costs to industry. PHMSA is issuing this IFR because the PIPES Act directs PHMSA to first issue temporary regulations. However, the agency invites comments and will, if appropriate, make changes to the IFR prior to the issuance of a final rule, which the agency must
You may submit comments by any of the following methods:
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James M. Pates, Assistant Chief Counsel for Pipeline Safety, (202) 366-0331; Kristin T. L. Baldwin, Senior Attorney, Office of Chief Counsel, (202) 366-6139, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
Section 16 of the PIPES Act amends 49 U.S.C. 60117 by establishing a new emergency order authority for PHMSA in the area of pipeline safety.
PHMSA is initiating this rulemaking with an IFR without prior notice of proposed rulemaking and opportunity to comment because section 16 states that the Secretary of Transportation
On June 22, 2016, the President signed the PIPES Act, Pubic Law 114-183, which amended the Pipeline Safety Laws in title 49 of the statute, 130 Stat. 514. Congress enacted section 16 to address the current gap in PHMSA's authority that prevents it from addressing conditions or practices that extend beyond or affect more than a single pipeline owner or operator and must be addressed immediately in order to protect life, property or the environment. Section 60117(o) augments PHMSA's existing enforcement authority to act quickly to address imminent safety hazards that exist across a subset or larger group of owners or operators. Section 60117(o) authorizes PHMSA to issue an emergency order if it determines that a violation, unsafe condition or practice, or a combination of unsafe conditions and practices, constitutes or is causing an imminent hazard. Under this section, an emergency order may impose restrictions, prohibitions, and safety measures on owners and operators of gas or hazardous liquid pipeline facilities without prior notice or an opportunity for a hearing. This regulatory authority allows PHMSA to impose conditions on a subset, or a broader group, of owners/operators, facilities, or systems, in accordance with the statutorily-mandated procedures outlined in this IFR.
Section 60112 of title 49, United States Code, provides for the issuance of a Corrective Action Order (CAO) to a pipeline facility after notice and an opportunity for a hearing. Prior to issuing a CAO, the Associate Administrator for Pipeline Safety must consider the following factors, if relevant: (1) The characteristics of the pipe and other equipment used in the pipeline facility involved, including its age, manufacturer, physical properties (including its resistance to corrosion and deterioration), and the method of its manufacture, construction or assembly; (2) the nature of the materials transported by such facility (including their corrosive and deteriorative qualities), the sequence in which such materials are transported, and the pressure required for such transportation; (3) the characteristics of the geographical areas in which the pipeline facility is located, in particular the climatic and geologic conditions (including soil characteristics) associated with such areas, and the population density and population and growth patterns of such areas; (4) any recommendation of the National Transportation Safety Board (NTSB) issued in conjunction with any investigations conducted by the NTSB; and (5) such other factors as the Associate Administrator may consider appropriate. 49 CFR 190.233(e). After weighing these factors and finding that a particular facility “is or would be hazardous to life, property, or the environment,”
PHMSA also utilizes a Notice of Proposed Safety Order (NOPSO) to notify an operator that a particular pipeline facility has a condition or conditions that pose a pipeline integrity risk to public safety, property, or the environment. The NOPSO proposes
The Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005 (HMTSSRA) conferred on the Secretary enhanced inspection authority for hazardous materials transportation, investigation, and enforcement authority. Public Law 109-59 (Aug. 10, 2005). Prior to the enactment of HMTSSRA, DOT could obtain relief against a hazmat safety violation posing an imminent hazard only through a court order. After finding such a threat, the DOT operating administration was required to enlist the Department of Justice to file a civil action against the offending party, and seek a restraining order or preliminary injunction. As a practical matter, judicial relief could rarely be obtained before the hazardous transportation movement was complete. In 2011, PHMSA published a final rule instituting enhanced enforcement authority. (Hazardous Materials: Enhanced Enforcement Authority Procedures, 76 FR 11570 (Mar. 2, 2011)). The final rule included streamlined administrative remedies that materially enhanced PHMSA's ability to prevent the unsafe movement of hazardous materials. These procedures address the issuance of emergency orders to abate unsafe conditions or practices posing an imminent hazard related to the transportation of hazardous materials. The Emergency Order Authority regulations contained in this IFR are modeled after the enhanced authority conferred by HMTSSRA, to the extent required by the PIPES Act.
While CAOs are an effective tool for the prompt evaluation and correction of a particular operator's facilities or procedures and advisory bulletins provide recommendations—but not enforceable requirements—to a wider audience, no enforcement vehicle existed, prior to adoption of the PIPES Act, that would allow PHMSA to address immediate safety threats facing the wider industry. This new enforcement tool will allow the Administrator to issue an emergency order either prohibiting an unsafe condition or practice or imposing an affirmative requirement when an unsafe condition, practice, or other activity in the transportation of natural gas or hazardous liquids poses a threat to life or significant harm to property or the environment. The emergency order authority conferred by the PIPES Act is intended to serve as a flexible enforcement tool that can be used to address time-sensitive, safety conditions affecting multiple owners/operators, facilities, or systems that pose a threat to life or significant harm to property or the environment. Unlike a CAO issued to a single operator, an emergency order would affect multiple or all operators and/or pipeline systems that share a common characteristic or condition. A variety of circumstances could warrant such an action, including: (1) Where a natural disaster affects many pipelines in a specific geographic region; (2) where a serious flaw has been discovered in pipe, equipment manufacturing, or supplier materials; and (3) where an accident reveals a specific industry practice that is unsafe and needs immediate or temporary correction. This list is not intended to be exhaustive. PHMSA will examine the specific facts in each situation to determine if an imminent hazard exists and will tailor each emergency order to address the specific imminent hazard under each circumstance presented, while observing the statutorily-mandated due process procedures.
Under section 16 of the PIPES Act, PHMSA may issue an emergency order without prior notice or an opportunity for a hearing when an unsafe condition or practice, or a combination of unsafe conditions and practices constitutes or is causing an imminent hazard. Section 16 defines an “imminent hazard” as “the existence of a condition relating to a gas or hazardous liquid pipeline facility that presents a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion date of a formal proceeding begun to lessen the risk of such death, illness, injury, or endangerment.”
The IFR requires that prior to issuance of an emergency order, PHMSA must consider the impact that an emergency order will have on public health and safety, the national or regional economy or national security, and the ability of owners and operators of pipeline facilities to maintain reliability and continuity of service to customers. An aggrieved entity may file a petition for review, at which time PHMSA must provide an opportunity for a review of the emergency order under 5 U.S.C. 554 to determine whether the order should remain in effect, be modified, or be terminated. If no agency decision with respect to the petition is issued on or before the last day of the 30-day period beginning on the date on which the petition is filed, the order will cease to be effective, unless the Administrator determines in writing, on or before the last day of such period, that the imminent hazard still exists.
Under the Administrative Procedure Act (APA) and the Federal Pipeline Safety Laws, PHMSA may issue an IFR when there is “good cause” to find that the notice‐and‐comment process would be “impracticable, unnecessary, or contrary to the public interest,” and the agency incorporates that finding and a brief statement of the reasons supporting the finding into the rulemaking document.
The good cause exception was made part of the APA to address certain scenarios encountered by federal agencies where delay would jeopardize their assigned missions to protect the public. Advance notice and comment rulemaking procedures may be deemed impracticable when an agency cannot both follow the notice-and-comment procedure and still achieve its statutory objectives. The “impracticability exception” to normal notice and comment procedures is an important exception that is used where delay would do real harm.
In this instance, the PIPES Act established a 60-day timeline for issuing these temporary or interim emergency-order regulations. This statutory deadline makes notice and comment impracticable, and not in the public interest. The final details of the PIPES Act were not known to PHMSA until after the statute was enacted, and the PIPES Act only affords PHMSA 60 days to issue temporary regulations implementing emergency order authority. Thus, allotting time for notice
This IFR establishes interim procedures to implement the expanded emergency order enforcement authority conferred by the PIPES Act. These procedures will apply only when PHMSA determines that an unsafe condition or practice is causing an imminent hazard. PHMSA may issue an emergency order without advance notice or opportunity for a hearing. The emergency order may impose emergency restrictions, prohibitions, and safety measures on owners and operators of gas or hazardous liquid pipeline facilities, but only to the extent necessary to abate the imminent hazard.
PHMSA proposes to amend part 190 of title 49, Code of Federal Regulations. Below is an analysis of the regulatory provisions.
This section contains a comprehensive set of definitions for part 190. PHMSA will add two definitions in order to clarify the meaning of these important terms as they are used in the text of this IFR.
As defined by statute,
This section contains procedures for effective service of enforcement actions issued under Part 190 and is amended to specifically exclude service of emergency orders from this section. Service of emergency orders will be defined in Section 190.236 Emergency Orders.
A new section 190.236 is added to authorize the Administrator to issue emergency orders upon determining that an unsafe condition or practice, or a combination of unsafe conditions and practices, constitutes or is causing an imminent hazard. This tool is necessary to abate conditions or other widespread circumstances that pose a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment that may occur before the reasonably foreseeable completion date of a formal proceeding begun to lessen the risk of such death, illness, injury, or endangerment. The order must articulate a sufficient factual basis to address the emergency situation warranting prompt corrective action.
Paragraph (a) outlines the critical elements that must be established in an emergency order prior to issuance. Principally, the order must be in writing and describe the violation, condition or practice that is causing the imminent hazard; specify the entities subject to the order; enumerate the restrictions, prohibitions, or safety measures imposed; explain the standards and procedures for obtaining relief from the order; explain how the order is circumscribed to abate the specific imminent hazard and why the authorities under sections 60112 and 60117(1) are insufficient; and explain how certain considerations were taken into account. In other words, the order must be narrowly tailored to the discrete and specific safety hazard and identify the corrective action(s) needed to remedy the hazard.
Paragraph (d) outlines how service of an emergency order will be achieved. The Administrator will publish emergency orders in the
A new section 190.237 is added to provide an affected party with administrative due process rights to seek redress of an emergency order, and thus, 49 CFR 190.237 sets forth the procedures for filing a petition for administrative review of an emergency order. The petition: (1) Must be in writing; (2) specifically state the section(s) of the emergency order being appealed; (3) include all information and arguments in support of the appellant's petition; and (4) follow appropriate service procedures. The petitioner may request a formal or an informal hearing. If a petitioner requests review of the order under section 554 of title 5, the party must detail the material facts in dispute giving rise to the hearing request. This process will allow PHMSA and the aggrieved entity to present evidence and argument in relation to the emergency order. If the petitioner does not request a formal hearing, the petition will be handled informally through the Office of Pipeline Safety unless the Associate Administrator determines that there is a reasonable basis for handling the petition through the formal hearing process.
Paragraphs (c) sets out the Associate Administrator for Pipeline Safety's responsibilities. These include: (1) Upon receipt of a petition for review of an emergency order that includes a formal hearing request and states material facts in dispute, immediately assigning the petition to the Office of Hearings, DOT; (2) for a petition for review of an emergency order that does not include a formal hearing request or fails to state material facts in dispute, issuing an administrative decision on the merits within 30 days of receipt of the petition (the Associate Administrator's decision will constitute the agency's final decision); (3) if more than one petition for review of an emergency order is received, and those orders are substantially similar, the Associate Administrator may consolidate the petitions for the purposes of complying with 49 CFR 190.237; and (4) in the event that a petitioner does not request a formal hearing, the Associate Administrator may reassign the petition to the Office of Hearings, DOT, when there is a reasonable basis for the reassignment.
Paragraphs (d) through (k) set out the administrative hearing procedures that the Department's Office of Hearings would employ. Upon receiving the petition from PHMSA, the Chief Administrative Law Judge assigns it to an Administrative Law Judge (ALJ), who schedules and conducts an “on the record” hearing under 5 U.S.C. 554. Given the statutory language of the PIPES Act, a petitioner must be afforded
Paragraph (d)(1) provides that an ALJ may administer oaths and affirmations, issue subpoenas as authorized by PHMSA's regulations, enable the parties to engage in discovery, and conduct settlement conferences and hearings to resolve disputed factual issues. PHMSA expects ALJs to conduct efficient and expeditious proceedings, including controlling discovery actions, to enable the parties to obtain relevant information and present material arguments at a hearing within the time parameters established.
Paragraph (g) requires the ALJ to issue a report and recommendation when the record is closed. The decision must contain factual findings and legal conclusions based on legal authorities and evidence presented on the record. Critically, the decision must be issued within 30 days after the Chief Counsel receives the petition.
PHMSA notes that Congress mandated that the Secretary must decide a petition for review within 30 days of its receipt, unless the Secretary determines in writing that an imminent hazard continues to exist, extending the order, pending review of the petition.
Paragraph (h) provides that an aggrieved party may file a petition for reconsideration of the ALJ's report and recommendation with the Associate Administrator for Pipeline Safety within one day of the issuance of the decision. The Associate Administrator is charged with issuing a final agency decision on the petition for reconsideration within three days of service of the final pleading, but no later than 30 days after receipt of the original petition for review.
Judicial review would be available in an appropriate District Court and afforded expedited consideration. All parties should note that the filing of a petition will not stay or modify the force and effect of final agency decision unless otherwise ordered.
Paragraph (k) specifies the computation of time in the adjudications process.
PHMSA's general authority to publish this IFR and prescribe pipeline safety regulations is codified at 49 U.S.C. 60101,
This IFR is a non-significant regulatory action under section 3(f) of Executive Order 12866, 58 FR 51735 (Oct. 4, 1993) and 13563, 76 FR 3821 (Jan. 21, 2011), and; therefore, was not reviewed by the Office of Management and Budget (OMB). This IFR is non-significant under the Regulatory Policies and Procedures of the Department of Transportation. 44 FR 11034 (Feb. 26, 1979).
Executive Orders 12866 and 13563 require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” This IFR solely affects agency enforcement procedures to implement the emergency order provisions of the law, and therefore this rulemaking results in no additional burden or compliance costs to industry. However, under circumstances warranting that PHMSA issue an emergency order, there may be incremental compliance actions and costs to operators and benefits related to the immediate lessening of the imminent risks of death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment across the entirety of affected populations and environments. In the case of existing regulatory provisions, costs and benefits are attributable to the original rulemaking.
This IFR has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). 64 FR 43255 (Aug. 10, 1999). This IFR does not introduce any regulation that: (1) Has substantial direct effects on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government; (2) imposes substantial direct compliance costs on state and local governments; or (3) preempts state law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
Further, this IFR does not have an impact on federalism that warrants preparation of a federalism assessment.
The Regulatory Flexibility Act, 5 U.S.C. 60101
PHMSA has analyzed this IFR in accordance with the Paperwork Reduction Act of 1995 (PRA). Pub. L. 96-511 (Dec. 11, 1980). The PRA requires federal agencies to minimize paperwork burden imposed on the American public by ensuring maximum utility and quality of federal information, ensuring the use of information technology to improve Government performance, and improving the federal government's accountability for managing information collection activities. This IFR contains no new information collection requirements subject to the PRA. However, following issuance of an emergency order, PHMSA may require the issuance of status updates, reports, or other information. PHMSA seeks comment on the potential paperwork burdens associated with this rulemaking.
PHMSA has analyzed this IFR according to the principles and criteria in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). 65 FR 67249 (Nov. 9, 2000). Because this IFR will not significantly or uniquely affect
This IFR is not a significant energy action under Executive Order 13211. 66 FR 28355 (May 18, 2001). It is not a significant regulatory action under Executive Order 12866 and is not likely to have a significant, adverse effect on the supply, distribution, or use of energy. Furthermore, this IFR has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.
The proposal in this IFR would not impose unfunded mandates under the Unfunded Mandates Act of 1995. Pub. L. 104-4 (Dec. 4, 1995). The IFR would not result in annual costs of $100 million or more, in the aggregate, to any of the following: State, local, or Indian tribal governments, or the private sector, and is the least burdensome alternative to achieve the objective of the IFR.
The National Environmental Policy Act, 42 U.S.C. 4321-4375, requires that federal agencies analyze proposed actions to determine whether an action will have a significant impact on the human environment. The Council on Environmental Quality (CEQ) regulations order federal agencies to conduct an environmental review considering (1) the need for the proposed action (2) alternatives to the proposed action (3) probable environmental impacts of the proposed action and alternatives and (4) the agencies and persons consulted during the consideration process. 40 CFR 1508.9(b).
Congress enacted the PIPES Act, in part, to address safety issues affecting multiple or all owners/operators of gas or hazardous liquid pipeline facilities
Because this IFR addresses a Congressional mandate, we have limited latitude in defining alternative courses of action. The option of taking no action would be both inconsistent with Congress' direction and undesirable from the standpoint of safety and enforcement. Failure to implement the new authority would continue PHMSA's inability to address conditions or practices constituting an imminent risk of death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment.
There are no direct environmental impacts to analyze. However, the issuance of an emergency order represents a reduction in imminent risk of death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment that cannot be lessened timely enough through a formal proceeding begun to lessen the risk.
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in spring and fall of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the United Agenda.
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 published in the
Emergency Orders; Administrative practice and procedures.
For the reasons discussed in the preamble, PHMSA amends 49 CFR Subchapter C as follows:
49 U.S.C. 60101
(a) Each order, notice, or other document required to be served under this part, with the exception of emergency orders under § 190.236, will be served personally, by certified mail, overnight courier, or electronic transmission by facsimile or other electronic means that includes reliable acknowledgement of actual receipt.
(a)
(1) The violation, condition, or practice that constitutes or is causing the imminent hazard;
(2) Those subject to the order;
(3) The restrictions, prohibitions, or safety measures imposed;
(4) The standards and procedures for obtaining relief from the order;
(5) How the order is tailored to abate the imminent hazard and the reasons the authorities under 49 U.S.C. 60112 and 60117(l) are insufficient to do so;
(6) How the considerations listed in paragraph (c) of this section were taken into account.
(b)
(c)
(1) The impact of the emergency order on public health and safety;
(2) The impact, if any, of the emergency order on the national or regional economy or national security;
(3) The impact of the emergency order on the ability of owners and operators of pipeline facilities to maintain reliability and continuity of service to customers; and
(4) The result of consultations with appropriate Federal agencies, State agencies, and other entities knowledgeable in pipeline safety or operations.
(d)
(a)
(1) Be in writing;
(2) State with particularity each part of the emergency order that is sought to be amended or rescinded and include all information, evidence and arguments in support thereof;
(3) State whether a formal hearing in accordance with 5 U.S.C. 554 is requested, and, if so, the material facts in dispute giving rise to the request for a hearing; and,
(4) Be filed and served in accordance with paragraph (f) of this section.
(b)
(c)
(2)
(3)
(4)
(d)
(1) Administer oaths and affirmations;
(2) Issue subpoenas as provided by the appropriate agency regulations (49 CFR 190.7 and 49 U.S.C. 60117);
(3) Adopt the relevant Federal Rules of Civil Procedure for the United States District Courts for the procedures governing the hearings when appropriate;
(4) Adopt the relevant Federal Rules of Evidence for United States Courts and Magistrates for the submission of evidence when appropriate;
(5) Take or cause depositions to be taken;
(6) Examine witnesses at the hearing;
(7) Rule on offers of proof and receive relevant evidence;
(8) Convene, recess, adjourn or otherwise regulate the course of the hearing;
(9) Hold conferences for settlement, simplification of the issues, or any other proper purpose; and,
(10) Take any other action authorized by or consistent with the provisions of this part and permitted by law that may expedite the hearing or aid in the disposition of an issue raised.
(e)
(f)
(2)
(i) Associate Administrator for Pipeline Safety, OPS, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., East Building, Washington, DC 20590.
(ii) Chief Counsel, PHC, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., East Building, Washington, DC 20590 (facsimile: 202-366-7041).
(iii) If the petition for review requests a formal hearing, the Chief Administrative Law Judge, U.S. Department of Transportation, Office of Hearings, M-20, Room E12-320, 1200 New Jersey Avenue SE., Washington, DC 20590 (facsimile: 202-366-7536).
(iv) Service must be made personally, by commercial delivery service, or by electronic means if consented to in writing by the party to be served, except as otherwise provided herein. The emergency order must state all relevant service requirements and list the persons to be served and may be updated as necessary.
(3)
(4) If applicable, service upon a person's duly authorized representative,
(g)
(1) Contain findings of fact and conclusions of law and the grounds for the decision based on the material issues of fact or law presented on the record;
(2) Be served on the parties to the proceeding; and
(3) Be issued no later than 25 days after receipt of the petition for review by the Associate Administrator of Pipeline Safety.
(h)
(2) The Associate Administrator of Pipeline Safety must issue a final agency decision within three days of service of the final pleading outlined in paragraph (h)(1) of this section, but no later than 30 days after receipt of the original petition for review.
(3) The Associate Administrator of Pipeline Safety's decision on the merits of a petition for reconsideration constitutes the agency's final decision.
(i)
(j)
(k)
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Final rule.
Excess flow valves (EFV), which are safety devices installed on natural gas distribution pipelines to reduce the risk of accidents, are currently required for new or replaced gas service lines servicing single-family residences (SFR), as that phrase is defined in 49 CFR 192.383(a). This final rule makes changes to part 192 to expand this requirement to include new or replaced branched service lines servicing SFRs, multifamily residences, and small commercial entities consuming gas volumes not exceeding 1,000 Standard Cubic Feet per Hour (SCFH). PHMSA is also amending part 192 to require the use of either manual service line shut-off valves (
This final rule is effective April 14, 2017.
EFVs can reduce the risk of explosions in natural gas distribution pipelines by shutting off unplanned, excessive gas flows. These events are primarily the result of excavation damage to service lines that occurs between the gas main and the customer's building. Based on the comments to this rulemaking, PHMSA experience, and various studies, PHMSA has determined that the safety benefits of expanding the use of EFVs to new or entirely replaced distribution branch services (gas service lines that begin at an existing service line or that are installed concurrently with primary service lines but serve separate residences), multifamily facilities, and small commercial facilities is appropriate from a technical, economical, and operational feasibility standpoint.
Pursuant to Section 22 of the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, this final rule amends the Federal pipeline safety regulations by adding four new categories of service for which EFV installation will be required. These four new categories are for new and entirely replaced services. The existing EFV installation requirement for SFRs served by a single service line remains unchanged. The new categories of service are as follows:
• Branched service lines to a SFR installed concurrently with the primary SFR service line (a single EFV may be installed to protect both lines);
• Branched service lines to a SFR installed off a previously installed SFR service line that does not contain an EFV;
• Multifamily installations, including duplexes, triplexes, fourplexes, and other small multifamily buildings (
• A single, small commercial customer served by a single service line, with a known customer load at time of service installation, based on installed meter capacity, of up to 1,000 SCFH per service.
Operators will be required to give all customers notice of the option to request an EFV installation, except where such installation is not required under § 192.383(c) (
Finally, this final rule also amends the Federal pipeline safety regulations by requiring curb valves, or EFVs, if appropriate, for applications operating above 1,000 SCFH.
PHMSA estimates a total impacted community of 4,448 operators for this rule (3,119 master meter/small LPG operators who will need to comply with notification requirements and 1,329 natural gas distribution operators who will need to install valves and comply with notification requirements) and 222,114 service lines per year on average. It is expected to generate safety benefits in the form of reduced fatalities, injuries, lost product, and other property damage from certain types of preventable incidents in gas distribution pipelines. The overall benefits over a 50-year period were estimated at the annual equivalent of $5.5 million per year versus $10.6 million in compliance costs when calculated using a 7 percent discount rate. When using a 3 percent discount rate, the total benefits of the rule were estimated at $10.5 million while the costs were estimated at $12.0 million.
An EFV is a mechanical safety device installed inside a natural gas distribution service line between the street and residential meter. If there is a significant increase in the flow of gas (
Curb valves are installed below grade in a service line at or near the property line with a protective curb box or standpipe for quick subsurface access and are operated by use of a removable key or specialized wrench.
On July 7, 1998, in South Riding, VA, an explosion stemming from a residential service line resulted in one death and three injuries. It is not known if the explosion occurred on a branched or non-branched service line, but PHMSA believes that this final rule or PHMSA's previous rule requiring EFVs on single lines serving SFRs
An investigation by the National Transportation Safety Board (NTSB) found the explosion likely would not have occurred if an EFV had been installed on the service line leading to this single-family home. As a result of its investigation, on June 22, 2001, the NTSB issued Safety Recommendation P-01-2, recommending that PHMSA “require that EFVs be installed in all new and renewed gas service lines, regardless of a customer's classification (
In December 2005, a multi-stakeholder group convened by PHMSA published a report titled: “Integrity Management for Gas Distribution: Report of Phase I Investigations.”
In an effort to study the possible benefits of expanding EFVs beyond SFR applications, PHMSA began development of an Interim Evaluation in early 2009. In June and August of that year, PHMSA held public meetings on NTSB Recommendation P-01-2 with participants from the following major stakeholder groups: the National Association of Regulatory Utility Commissioners, the National Association of Pipeline Safety Representatives, the International Association of Fire Chiefs, the National Association of State Fire Marshals, natural gas distribution operators, trade associations, manufacturers, and the Pipeline Safety Trust.
On December 4, 2009, PHMSA amended the pipeline safety regulations to require the use of EFVs for new or replaced gas lines servicing SFRs.
PHMSA, already aware of this risk, issued a report in 2010 titled: “Interim Evaluation: NTSB Recommendation P-01-2 Excess Flow Valves in Applications Other Than Service Lines Serving One SFR” (Interim Evaluation),
The Evaluation
PHMSA published an ANPRM for gas pipelines on November 25, 2011 (76 FR 72666), asking the public to comment on the findings of the Interim Evaluation and issues relating to the expanded use of EFVs in gas distribution systems. PHMSA also sought comments from gas distribution operators on their experiences using EFVs, including:
• Technical challenges of installing EFVs on services other than SFRs;
• Categories of service to be considered for expanded EFV use;
• Cost factors;
• Data analysis in the Interim Evaluation;
• Technical standards for EFV devices; and
• Potential safety and societal benefits, small-business and environmental impacts, and the costs of modifying the existing regulatory requirements.
PHMSA reviewed all of the comments received in response to the ANPRM. The comments received from the trade associations largely supported expanded EFV use, with certain limitations. Individual operators raised concerns about expanded EFV use that were generally related to logistics and implementation. Comments from municipalities reflected a concern that State laws that were already in place could conflict with new Federal requirements. The NTSB expressed strong support for increased EFV use. The ANPRM comments collectively helped PHMSA finalize the Interim Evaluation and determine what regulatory changes to propose in the Notice of Proposed Rulemaking (NPRM).
In January of 2012, President Obama signed the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011, which required PHMSA to study the possibility of expanding the use of EFVs beyond SFRs and issue a final report to Congress on the evaluation of the NTSB's recommendation on EFVs within 2 years after enactment of the Act. PHMSA was also required to issue regulations, if appropriate, requiring the use of EFVs or equivalent technology for new or entirely replaced gas distribution branch services, multifamily facilities, and small commercial facilities if economically, technically and operationally feasible.
PHMSA published an NPRM (80 FR 41460) on July 15, 2015, asking the public to comment on the findings of the finalized Evaluation and PHMSA's proposals relating to the expanded use of EFVs in gas distribution systems. PHMSA proposed a rule that would:
• Expand the EFV requirement to include new or replaced branched service lines servicing SFRs, multifamily residences, and small commercial entities consuming gas volumes not exceeding 1,000 SCFH;
• Require the use of manual service line shut-off valves (
• Require operators to notify customers of their right to request installation of an EFV on existing service lines; and
• Leave the question of who bears the cost of installing EFVs on service lines not being newly installed or replaced to the operator, customer, and the appropriate State regulatory agency.
The Technical Pipeline Safety Standards Committee (otherwise commonly referred to as the Gas Pipeline Advisory Committee (GPAC)) is a statutorily mandated advisory committee that advises PHMSA on proposed safety standards, risk assessments, and safety policies for natural gas pipelines. The GPAC was established under the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. 1-16) and the Federal Pipeline Safety Statutes (49 U.S.C. Chap. 601). The committee consists of 15 members, with membership equally divided among Federal and State agencies, the regulated industry, and the public. The GPAC advises PHMSA on the technical feasibility, practicability, and cost-effectiveness of each proposed natural gas pipeline safety standard.
On December 17, 2015, the GPAC met via a teleconference facilitated by PHMSA at PHMSA's headquarters in Washington, DC. During the meeting, the GPAC considered the specific regulatory proposals set forth in the NPRM and discussed the various comments and edits to the NPRM proposed by the pipeline industry and the public. The GPAC, in a unanimous 8-0 vote, found the NPRM, as published in the
The GPAC recommended that PHMSA adopt the following changes:
•
•
• Documentation of Customer Notification: PHMSA's proposal in the NPRM stated operators “must provide written notification to the customer of their right to request the installation of an EFV,” and that “each operator must maintain a copy of the customer EFV notice for three years.” Several commenters noted that the term “written” seemed to exclude forms of electronic notification, and they also noted that documenting individual notifications would be a costly, overly burdensome task. The GPAC recommended that PHMSA incorporate language from the NPRM preamble indicating broader options for stakeholder communication, including statements printed on customer bills or mailings or certain forms of electronic communication, including Web site postings, would satisfy the customer notification requirement, and that operators could keep a single copy of a particular method of communication for purposes of fulfilling the documentation requirement.
This final rule adopts all three recommendations of the GPAC. Additional discussion of the amendments and associated comments of the GPAC are provided below as a part of the comment discussion.
In the NPRM published July 15, 2015, PHMSA solicited public comment on whether the proposed amendments would enhance the safety of natural gas distribution systems, as well as the cost and benefit figures associated with these proposals. PHMSA received 12 comments from a broad array of stakeholders, including trade organizations, pipeline operators, a government agency, and a public citizen safety watchdog group. Below is a list of organizations that submitted comments in response to the NPRM as well as the individual docket number for each comment. All comments and corresponding rulemaking materials received may be viewed on the
The majority of the comments specifically supported expanding EFV installation requirements. Major concerns included whether first responders should have access to curb valves, whether curb valves required inspection and maintenance, and what methods were being proposed for customer notification and documentation. Minor concerns included EFV installation, the effective date of the rule, and exceptions to EFV installation and notification. The substantive comments received on the proposed regulations are organized by topic and are discussed in the appropriate sections below, along with PHMSA's responses.
• New Mexico Gas Company (NMG) PHMSA-2011-0009-0032
• Southwest Gas Corporation (SWG) PHMSA-2011-0009-0044
• NiSource (NS) PHMSA-2011-0009-0042
• Sierra Pacific Power Company (SPPC) PHMSA-2011-0009-0041
• MidAmerican Energy Company (MAE) PHMSA-2011-0009-0034
• American Gas Association (AGA) PHMSA-2011-0009-0037
• National Propane Gas Association (NPGA) PHMSA-2011-0009-0045
• Gas Piping Technology Committee (GPTC) PHMSA-2011-0009-0036
• American Public Gas Association (APGA) PHMSA-2011-0009-0024
• Northeast Gas Association (NGA) PHMSA-2011-0009-0039
• National Transportation Safety Board (NTSB) PHMSA-2011-0009-0035
• Pipeline Safety Trust (PST) PHMSA-2011-0009-0040
• Branched service lines to an SFR installed concurrently with the primary SFR service line (a single EFV may be installed to protect both lines);
• Branched service lines to an SFR installed off a previously installed SFR service line that does not contain an EFV;
• Multifamily installations, including duplexes, triplexes, fourplexes, and other small multifamily buildings (
• A single, small commercial customer, served by a single service line, with known customer load at time of service installation, based on installed meter capacity, up to 1,000 SCFH per service.
Industry trade associations, such as the AGA, which represents more than 200 local energy companies throughout the United States and provides gas to 94 percent of U.S. customers, stated in their comments that they and “their member utilities completely support expanding EFV installation to multifamily residential service lines and small commercial services.” The APGA, the national, non-profit association of publicly owned natural gas distribution
NMGC “commend[ed] and support[ed] expanding the use of excess flow valves to new and fully replaced branch services, small multifamily facilities, and small commercial facilities where economically, technically, and operationally feasible.” SWG “support[ed] the practical and reasonable expansion of EFVs to new and fully replaced service lines beyond single family residential applications,” in part “evident by its EFV installation policy and number of EFVs installed [on its existing system].” Likewise, the NGA “support[ed] PHMSA's proposal to expand the use of excess flow valves in gas distribution services for newly constructed applications other than single-family residences and when existing services are excavated or replaced,” recognizing that “installing EFVs, under conditions where they are effective, when new services are installed, or existing services are exposed, repaired or replaced, is a cost-effective measure to improve pipeline safety.” The NGA also noted that it “supported this proposal in its initial comments to the advanced notice of proposed rulemaking related to this issue in 2012.”
Prior attempts to require the installation of EFVs on certain gas distribution services were not supported by both industry and State pipeline safety partners; for years, EFVs were perceived as unreliable, costly pieces of equipment that might accidentally close and interfere with normal service, interfere with maintenance activities, or be difficult to size and use at varying line pressures. Further, in the Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006, Congress provided PHMSA with a mandate to focus its resources on requiring EFV installation on service lines serving single-family residences as part of PHMSA's gas distribution integrity management program (DIMP) rulemaking. Following the issuance of the DIMP rulemaking and the EFV regulations in 2009, EFVs became more technologically feasible and cost-effective to a point where it became a realistic possibility for PHMSA to address fully the NTSB recommendation. PHMSA performed several studies and surveys to evaluate the feasibility of its position on high-volume EFVs and used its experience in the prior EFV rulemaking to assist in formulating this proposal. PHMSA is pleased that there is now such widespread support, both from industry and public groups, for expanding the installation of EFVs beyond SFRs. Accordingly, this final rule amends the Federal Pipeline Safety Regulations by adding the proposed four new categories of service to require EFV installation on branched service lines (both branched lines to SFRs installed concurrently with the primary SFR service line and branched lines to SFRs installed off a previously installed SFR service lines not containing an EFV), lines serving multifamily installations, and lines serving small commercial and industrial customers.
Several of the commenters representing trade associations and operators supported the use of curb valves where EFVs are not feasible but strongly opposed requiring that curb valves always be accessible to first responders. These commenters generally indicated that it should be the operator's responsibility to operate these select portions of gas distribution systems and that it should be up to the operator's discretion to allow other personnel to operate these valves, if needed. Certain operators noted the “Pipeline Emergencies” training manual, a document developed by a team of respected emergency response and industry experts in partnership with the National Association of Fire Marshals and PHMSA, states that emergency responders should consult the local gas company to determine local procedures for fire department use of curb valves. The AGA indicated there are a few unique situations where operators have properly trained first responders to operate curb valves, but such a practice is not followed by most utilities. Certain industry operators, including the SPPC, commented that they specifically train first responders in their service territories, for safety reasons,
Operators and trade associations also asserted that, given the complexity of gas distribution systems, emergency shut-off valves should only be operated by operator-qualified personnel who are familiar with the specific gas distribution system in question. NS suggested that, as operators have engineering records indicating the location of all valves and which ones they control, operator personnel can verify the location and purpose of a valve, thereby eliminating the possibility of operating the wrong one and creating a greater hazard.
The AGA noted there are many accounts of first responders who,
Some operators indicated that giving first responders immediate access to curb valves would distract them from their primary mission, which is to perform safety assessments, make locations safe for people, and conduct evacuations from areas of danger. Instead, they would suddenly have responsibility for locating valves, determining which valves should be closed, and closing them—tasks which could potentially interfere with their primary mission and for which they might not be trained.
At the GPAC meeting, members of the committee expressed concerns similar to those raised by industry regarding unauthorized or improper manual service line shut-off valve usage. The committee debated whether there could be a requirement authorizing first responders to operate those particular valves or whether operators could give discretion to certain first responders to operate valves. One question that was brought up was whether eliminating “first responders” from the proposed language (which would leave “accessible to operator personnel” remaining) would unintentionally create a requirement that would make manual service line shut-off valves accessible to only company personnel. The committee eventually suggested revising the paragraph by striking the reference to first responders and inserting “other personnel authorized by the operator.” The committee believed this would give operators the primacy they sought for operating their own distribution systems while, at the same time, making the valves accessible and usable by non-operator personnel with the operator's consent.
In PHMSA's experience, there have been accidents where the consequences have grown due to operator delays in shutting off curb valves. As a part of an operator's regular liaison with first responders, operators can, if they wish, train first responders to use curb valves properly through regular exercises and communications. Further, if the valve cover plate is clearly marked, there should not be any confusion regarding the operation of the valve in an emergency. However, PHMSA is not advocating the unauthorized operation of these valves. Unless they believe there is imminent threat to human life or extensive property damage, first responders should not operate curb valves without operator input or consent.
In this final rule, PHMSA is adopting the language recommended by the GPAC, which would make curb valves accessible to operators and other personnel authorized by the operator to manually shut off gas flow, if needed, in the event of an emergency. PHMSA appreciates the work of the GPAC in proposing a consensus solution that enables first responders, if qualified and authorized, to operate valves if needed, yet retains the operators' right to make decisions regarding the operation of their own systems.
Specifically, operators noted that the addition of § 192.385, as proposed in the NPRM, might lead to the mistaken inference that manual service line shut-off valves would be subject to the valve maintenance requirements set forth in § 192.747, “Valve maintenance: Distribution systems.” The AGA, NMGC, SWG, and APGA all noted that PHMSA has issued many letters of interpretation affirming that § 192.747 does not apply to curb valves, but the proposed § 192.385 could be misconstrued to require such annual inspections. The AGA and NMGC support PHMSA's historical position that manual curb valves are not considered a “critical valve” for inspection purposes, suggesting that if these valves were to be designated as critical valves, operators would have to hire and train a significantly larger staff to inspect and maintain these valves, which would significantly increase operating costs and impose an administrative burden. The AGA and APGA noted that if it was PHMSA's intent to change its position and require annual inspections on these manual curb valves, this is not indicated in the NPRM, the estimated cost of the rule, or the estimated paperwork burden. Operators suggested PHMSA clearly state in the final rule that curb valves installed under this proposal would not be subject to the requirements at § 192.747.
At the GPAC meeting, members of the committee discussed this proposal and whether these valves should be inspected and maintained according to the requirements at § 192.747. Several members agreed that inspecting and maintaining these valves would be an important safety measure, although several suggested that requiring these valves to be inspected and maintained would require an increase in staffing and operator qualification.
Other members of the committee expressed concerns about operating these valves for inspection purposes, arguing that testing curb valves could knock out service in areas if they were operated improperly, and that testing could potentially present more risk than reward. Members of the committee also agreed that requiring annual inspection and maintenance of these valves would be unreasonable and perhaps unnecessary. Some suggested that if these valves were to be inspected and maintained, then perhaps those requirements could be tied to existing maintenance activities, such as leak surveys and patrolling, meter-change programs, or other times when service lines would be shut off.
Ultimately, the committee suggested requiring valves installed under this section to be subject to regularly scheduled and documented maintenance consistent with the valve manufacturer's specifications. While some GPAC members expressed concern
PHMSA appreciates the work of the GPAC in debating this proposal and chooses to adopt the language the GPAC recommended, as the amendment strikes a good balance between limiting any potential burden imposed on operators and performing necessary activities to ensure operability and safety. Therefore, the final rule amends the Federal Pipeline Safety Regulations to require that manual service shut-off valves installed under this section be subject to regular scheduled maintenance as documented by the operator and consistent with the valve manufacturer's specifications.
Some commenters questioned the effectiveness of the requirement for notification to customers within 90 days of new service. The APGA felt it was unclear what was meant by “notification must occur within 90 days of the customer first receiving gas at a particular location.” This could be interpreted to apply when the operator changed the name of the person to whom it sends gas bills. This could also be interpreted not to require notification of existing customers who have been receiving gas for more than 90 days. MAE noted it appears the intent studied in the Evaluation was for a single annual notification to all customers and customer classes, based on a 1-hour level of burden. Several operators, including MAE and SPPC, as well as trade organizations, argued that establishing a 90-day requirement per customer would cause a significant increase in costs, documentation efforts, and a tangible administrative burden. MAE concurs with the idea of notifying owners of the option for an EFV and its potential benefits but believes this could be done with a new customer packet that could be acted upon by customers who want to initiate installation. This could then be inspected as a part of the public awareness program.
Many operators and trade associations suggested that notifying all existing customers through a broad notification, such as “bill stuffers,” “new customer” packets, and Web site postings, would be a better use of operator resources and provide greater benefits. SWG noted that allowing operators to provide EFV notification through broad means would be consistent with the way PHMSA proposed the notification requirement for master-meter operators. Further, the AGA mentioned that the NPRM's “Section-by-Section” analysis indicated PHMSA was open to other forms of notification, such as a printed statement on a customer bill or mailings, but that was not evident in the actual proposed regulatory text. Members of the GPAC echoed this statement when the committee meeting was held and wanted PHMSA to clarify which methods of notification were acceptable. The AGA suggested that given the number of customers that have migrated to online billing and have opted to receive notifications electronically from their natural gas service provider, operators should be able to satisfy the notification requirement through electronic notifications to customers, postings on the company's Web site, and other forms of electronic communications. Satisfying the proposed requirement through these methods as well as traditional communications would allow effective communication at a lower cost and in a more efficient manner. The AGA urged PHMSA to make it clear in the final rule that individual communications to each customer would not be required, and that an annual general EFV communication would suffice. The APGA noted that, as many operators may elect to use bill stuffers to notify all customers about EFVs, PHMSA should allow, as an alternative to notification within 90 days of a customer receiving gas, operators to notify all customers annually of their right to request an EFV. For many APGA members, this would be the least administratively burdensome method of notifying customers and have the added benefit of providing customers who may have overlooked the original notice with additional opportunities to choose to have an EFV installed on their service lines.
Several commenters had miscellaneous concerns on what the customer notification should contain. SPPC suggested providing a description of EFVs and their safety benefits as well as advice on how to request one, a notification that could be inspected as part of an operator's public awareness
PHMSA has also determined that, as operators appear to be willing to notify all existing customers about their potential right to request an EFV, the specific 90-day customer notification window for new services is unnecessary. PHMSA has removed this language from the final regulatory text. A broad notification to all customers will also address any concerns about reaching customers who are not eligible for EFV installation or who have already had EFVs installed.
As for the specific content of a notification, PHMSA has determined it would be beneficial to include language that was previously required in the 1998 EFV notification rule, especially considering that operators would already be familiar with the previous requirements. In line with comments from SPPC, AGA, and NS, PHMSA will require that operators include general information on the cost associated with EFV installation, the potential safety benefits that may be derived from installing an EFV, and conditions for installation. The operator may choose how to word the specific information as long as they provide sufficient information to give customers a rational basis for deciding whether they want to request an EFV installation. The notification should also be written in plain language.
The AGA recommended that the final rule allow retention of a single copy of any notice, accompanied by a listing of the customers who received the mailing, or by documenting the electronic communication itself. The APGA noted that in the proposed rule's preamble, PHMSA stated that evidence of notification could include such items as a statement printed on customer bills or mailing. The APGA further noted that PHMSA did not propose to require operators to keep records showing that individual customers had been notified. SWG stated that while the section-by-section analysis indicated that operator evidence of notification could include such items as a statement printed on customer bills or mailings, the proposed regulatory text did not include such language.
Some operators and trade associations discussed other issues pertaining to the 3-year recordkeeping requirement. SPPC and NGA noted that customer properties with frequent turnover would have multiple records for the same address that would need to be maintained and sorted for a period that could extend beyond the 3 years required by the regulations. The NPGA argued that PHMSA's recordkeeping requirement presented a greater burden than estimated. For large liquefied petroleum gas (LPG) operators, it would be a considerable clerical task to collect and review all EFV installation notifications to maintain a record spanning 3 years. The NPGA suggested that PHMSA permit the recordkeeping as an option rather than a requirement, which would allow LPG operators to choose best practices for their businesses and customers.
It was not PHMSA's intent to suggest that operators would need to transmit and document individual notifications to eligible customers. As a few of the commenters pointed out, PHMSA had indicated that a statement printed on customer bills or mailings would suffice as evidence for customer notification, but this language and intent was not incorporated into the proposed regulatory text. As PHMSA is allowing operators to notify customers through a broad range of electronic and traditional communications, the agency will also allow operators to retain a copy of the broad annual notification or notifications they are using to communicate with customers their right to request an EFV. In line with the 2008 Federal Pipeline Safety Regulations regarding operator evidence of customer notification, operators will be required to make a copy of the notice currently in use available during PHMSA inspections or inspections conducted under a program certified or approved by PHMSA under 49 U.S.C. 60105 or 60106 without any further recordkeeping requirement or timeframe.
Several operators and trade associations, including SPPC, NMGC, AGA, NS, MAE, APGA, and SWG, suggested PHMSA revise the proposed regulatory text to give operators the option to install either an EFV or a manual service line shut-off valve based on sound engineering analysis and the availability of larger-format EFVs. The NMGC verified with EFV manufacturers, such as GasBreaker Inc., that EFVs are available and will meet the requirements necessary for operating on single-family residences above 1,000 SCFH. NS saw an opportunity to encourage operators to install EFVs on loads in excess of 1,000 SCFH, as NS has had success with installing EFVs in service lines for loads greater than 1,000 SCFH. The APGA believed the technology of EFVs and products available would continue to evolve, and in the future, some operators may test and become comfortable installing EFVs on some services operating above 1,000 SCFH. The APGA noted the rule should state that an operator need not install a curb valve if the operator installs an EFV on a service line instead. Further, SPPC noted that this requirement should be flexible enough to ensure that operators can account for increased loads in the future, such as being able to install a curb valve on a new service line with an initial load less than 1,000 SCFH but that might later exceed 1,000 SCFH so as to avoid the additional cost of replacing an EFV with a curb valve in the future.
Additionally, NMGC, SWG, NGA, and AGA determined that under no circumstances should operators be required to install both an EFV and a manual service line shut-off valve on the same service line. The AGA noted that, as currently proposed, the regulations would require both a manual curb valve and an EFV on (1) any SFR operating at greater than 1,000 SCFH or (2) a non-SFR operating at greater than 1,000 SCFH where an operator installed an EFV under DIMP. Further, as proposed, the rule could prohibit further innovation on EFVs that might be able to operate above 1,000 SCFH.
The GPTC expressed a similar view on the issue, noting that the rule, as proposed, would not give an operator sufficient flexibility to use sound engineering practices to design an EFV on service lines with loads greater than 1,000 SCFH, in lieu of a manual curb valve. In the proposed § 192.383(b)(4) and (5), PHMSA established a threshold of 1,000 SCFH customer load over which an EFV was not required. However, there is no threshold limit of 1,000 SCFH for proposed § 192.383(b)(1), (2), and (3). The result is that a large SFR or branch to two large SFRs with a service line load greater than 1,000 SCFH would have both an EFV and a curb valve, but a multifamily residence with a service line load greater than 1,000 SCFH would require only an emergency curb valve, even if an EFV were available and suited for the application. The GPTC asked PHMSA to modify this section to allow greater flexibility.
PHMSA notes that it originally wanted to require operators install EFVs on service lines with loads up to 5,000 SCFH, as PHMSA knows that valves are available for these applications, and manufacturers have indicated they have sold EFVs for these load sizes. PHMSA chose the 1,000 SCFH threshold, which was accepted by the GPAC, as a compromise based on comments from industry. Having operators perform a sound engineering analysis will allow PHMSA to verify operators are taking into account maximum loads and the capabilities of EFVs, if available, to handle those loads. An operator's engineering analysis for sizing an EFV should be based on maximum expected load throughout the year, including snap loads, critical supply applications, system configuration, and future anticipated loads (
In response to SPPC's comment, PHMSA is not allowing manual valve installation for loads below 1,000 SCFH, even when future anticipated loads may exceed that threshold. In this final rule, PHMSA is allowing operators to install EFVs in lieu of manual valves in instances where loads exceed 1,000 SCFH. As operators already consider anticipated design loads and work with distribution system designers to determine proper system configurations and valve sizing when installing systems, operators should be able to install appropriate valves for future anticipated loads.
PHMSA also considered the GPTC's comment. In the best professional judgment of PHMSA's subject matter experts, a SFR service line combined with a branch service to another SFR isn't known to exceed 1,000 SCFH, and typical houses consume anywhere from 100-250 SCF per day. However, commercial and industrial facilities can exceed 1,000 SCFH, and therefore the threshold is needed. Accordingly, in this final rule, PHMSA has amended the Federal Pipeline Safety Regulations at § 192.385(b) to require that operators install either a manual shut-off valve or, if possible, based on sound engineering analysis and availability, an EFV on lines operating at capacities exceeding 1,000 SCFH.
The NPGA noted that PHMSA's proposal to permit State regulatory authorities to determine what party is responsible for installation costs when a customer requests installation of an EFV presents particular concerns for LPG systems and businesses. PHMSA's deference to State agencies would impose disproportionately negative effects on operators of LPG systems compared to other utilities, since LPG pipeline operators are not regulated in
NS noted that in previous amendments to § 192.383 (EFV customer notification, Feb 3, 1998), the Research and Special Programs Administration, PHMSA's predecessor agency, acknowledged that the cost of installing an EFV on an existing line was to be the responsibility of the customer. Therefore, if PHMSA wishes to address who is to pay for the installation of EFVs on existing service lines, NS proposed that PHMSA adopt its previous requirement that the service line customer bear the cost. NS also believed this requirement would also be best addressed under § 192.383(e).
The APGA was vehemently opposed to the proposed language stating that the appropriate State regulatory agency would determine to whom and how the costs of the requested EFVs would be distributed, indicating that of the approximately 1,000 public gas utilities subject to the Federal Pipeline Safety Regulations, only a few have a State agency determining how the cost of gas service is distributed among customers. Whereas State public utility commissions (PUC) typically review and approve the rates charged by investor-owned and privately owned operators (which represent less than 25 percent of distribution operators regulated by PHMSA), rates for public distribution systems are typically approved by the municipality, utility board, or similar local oversight body. The APGA noted the preamble of the NPRM made clear that PHMSA did not intend to regulate how EFV costs would be recovered and did not believe it was PHMSA's intent to require public gas distribution operators to become subject to PUC review for EFV cost recovery. Rather, the APGA believed it was PHMSA's intent to “leave the determination of how the cost of installing an EFV at customer request to the operator and whatever body approves the operator's gas rates.”
Apart from PHMSA's proposal for determining cost recovery, some commenters discussed additional cost-benefit issues related to EFV installation on existing service lines. The APGA noted that operators should only be required to install EFVs if requesting customers also agree to whatever cost-recovery mechanism has been included in the operator's approved rates. The AGA, SWG, and NGA noted that the cost of retrofitting an EFV on an existing service line could be significant, with SWG adding that this cost was not included in PHMSA's cost-benefit analysis. The NGA further indicated that offering customers the option of installing EFVs on existing services not planned for replacement, excavation, or repair was not a cost-effective safety measure, and installing EFVs on existing services should be evaluated by each operator as a part of its integrity management planning.
MAE requested a further analysis of the value and costs of installation, operations and maintenance, and leak rates on curb valves to determine whether there are more cost-efficient methods of emergency shut-off. A member of the GPAC also expressed concerns about PHMSA's cost-benefit numbers related to curb valves, suggesting that PHMSA reconsider including curb valve maintenance in the cost-benefit analysis and further analyze whether the incidents PHMSA used when examining the effectiveness and usefulness of curb valves were applicable to the analysis. Specifically, the GPAC member questioned whether, for the incidents PHMSA selected applicable to curb valves in its analysis, a curb valve on the line would have actually prevented fatalities, injuries, or property damage, noting that the narrative of a few of the accidents indicated some of the fatalities and injuries were actually caused by car crashes and not the subsequent gas incidents.
PHMSA understands that the cost of installing an EFV on an existing line at the customer's request is more expensive than if the line were new or being replaced due to excavation and additional labor costs and determined it was not cost-effective to require the fitting of an EFV on all existing services.
A 2007 National Regulatory Research Institute (NRRI) study titled “Survey on Excess Flow Valves: Installations, Cost, Operating Performance, and Gas Operator Policy,” suggests that customer-initiated EFV installations are quite rare, even in locations where they are currently allowed by local policy, and would not be a circumstance operators would be dealing with in significant numbers. However, without this provision, customers on existing lines without an EFV would essentially have no option to install an EFV, even if they highly valued the risk reduction that it provided and were willing to pay the full installation cost. These foregone transactions would represent deadweight loss. Although PHMSA determined that mandatory installation on all existing lines would not be cost-effective due to excavation and labor costs, some individual households might have a high willingness-to-pay for EFVs due to differences in risk aversion, rate of time preference, and other factors.
Further, it is PHMSA's understanding that customers would typically be required to pay for these installations. From an economic standpoint, an EFV requested and paid for by a customer would actually increase the overall net benefit of the final rule, as PHMSA can infer from the customer's choice that they value the EFV's protection at a level greater than the cost they pay.
As for the concern of whether applicable incidents were chosen to analyze the costs and benefits for curb valves, PHMSA applied reasonable filters to its data to choose appropriate and applicable incidents for analysis but there can be some level of uncertainty in such incident data. PHMSA is also aware of incidents that might have been prevented by the use of a curb valve, but these incidents were excluded from the analysis due to data limitations or for other reasons.
In light of this particular comment, however, PHMSA reexamined and revised the incident set pertaining to curb valves in order to provide a more conservative cost-benefit analysis. For some of the incidents in question (
PHMSA notes that because a curb valve can allow gas flow to be shut off quickly, a curb valve could still be effective in mitigating the consequences of these incidents by shortening their duration, especially where property damage is concerned. Further, PHMSA's data is limited and often does not indicate clearly whether fatalities, if not caused by the initial impact, are due to injuries sustained during the crash or by the subsequent pipeline incident. For example, quickly shutting off the flow of gas at the site of an incident may be able to save the life of someone who has been knocked unconscious or has been otherwise incapacitated. Because of this, PHMSA still believes that installing EFVs and curb valves on service lines can provide a tangible safety benefit to the public and the environment.
The AGA and SPPC asked that PHMSA consider exempting service lines that already had manual valves on them or lines where an operator might expect the load to increase beyond 1,000 SCFH and would install a manual valve instead.
PHMSA does not wish to include any further exceptions to the ones that were proposed. PHMSA is concerned that operators might interpret the fact that a service line already has a manual valve to mean that an EFV does not need to be installed. This would be an incorrect assumption. Applicable new and replaced service lines with loads not exceeding 1,000 SCFH must have EFVs installed on them. Moreover, as PHMSA is allowing installation flexibility for lines operating above 1,000 SCFH, the agency believes it is unnecessary to provide a specific exemption for installing an EFV when the line could be expected to operate above 1,000 SCFH.
While PHMSA does not delineate who the “customer” is in the regulatory text, the APGA is correct in that PHMSA intends the “customer” to be the person to whom the utility sends the gas bill.
PHMSA declined to add a reference in proposed § 192.385(b) and (c) back to § 192.383 regarding PHMSA's definition of a replaced service line. PHMSA intends curb valves installed under § 192.385 to be appropriate substitutes for EFVs and are not otherwise considered manual valves within the distribution network.
Regarding MAE's comment, the language indicating that EFVs are to be used on service lines operating continuously throughout the year at a pressure not less than 10 p.s.i. (69 kPa) gage has been in the regulations since 1996. The only change that has been made since that time is the removal of the term “single-family” from “service lines.” PHMSA is aware, however, there
The NGA commented that it did not believe that development of EFV standards was needed and that the development of design considerations would best be performed by the utilities themselves or by standards-setting organizations, based on EFV manufacturer specifications considering customer load, meter size, service pipe size, and pressures.
This final rule is published under the authority of the Federal pipeline safety laws (49 U.S.C. 60101
This final rule is a non-significant regulatory action under section 3(f) of Executive Order 12866 (58 FR 51735) and, therefore, was not reviewed by the Office of Management and Budget. This final rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034) because of substantial stakeholder interest in pipeline safety.
Executive Orders 12866 and 13563 require agencies regulate in the most cost-effective manner, make a reasoned determination that the benefits of the intended regulations justify its costs, and develop regulations that impose the least burden on society. PHMSA is providing the final Regulatory Impact Analysis (RIA) simultaneously with this rule, and it is available in the docket. The final RIA does not address the benefits and costs of the proposal to require operators to install EFVs on branched service lines providing gas service to SFRs because the benefits and costs of this proposal were addressed in the regulatory impact analysis for a previous rulemaking.
PHMSA estimates a total impacted community of 4,448 operators for this rule (3,119 master meter/small LPG operators who will need to comply with notification requirements and 1,329 natural gas distribution operators who will need to install valves and comply with notification requirements) and 222,114 service lines per year on average. PHMSA assumed that valves do not have network effects; in other words, each EFV operates independently, and the costs and benefits of EFV installation simply scale linearly. The total annualized benefits of the rule are $5.5 million when discounted at 7 percent, while the total annualized costs are $10.6 million. At the 3 percent discount rate, the total benefits of the rule are $10.6 million, while the costs are $12.0 million.
The following table summarizes the annualized benefits and costs of this final rule:
Additional unquantified benefit areas include:
• Equity: Provides a fair and equal level of safety to members of society who do not live in SFRs;
• Additional incident costs avoided for which no PHMSA incident data are available:
• Mitigates the consequences (death, injury, property damage) of incidents when customer piping or equipment is involved and thus the incident would not be reflected in PHMSA records;
• Additional incident costs that are not recorded in incident reports, including costs of evacuations, emergency response costs, and business downtime;
• Environmental externalities associated with methane releases (discussed in the RIA Appendix);
• Peace of mind for operators and customers; and
• Protection against seismic events and intentional tampering.
Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review that were established in Executive Order 12866, Regulatory Planning and Review, of September 30, 1993. Additionally, Executive Order 13563 specifically requires agencies to: (1) Involve the public in the regulatory process; (2) promote simplification and harmonization through interagency coordination; (3) identify and consider regulatory approaches that reduce burden and maintain flexibility; (4) ensure the objectivity of any scientific or technological information used to support regulatory action; and (5) consider how to best promote retrospective analysis to modify, streamline, expand, or repeal existing rules that are outmoded, ineffective, insufficient, or excessively burdensome. When developing this rule, PHMSA involved the public in the regulatory process in a variety of ways. Specifically, PHMSA considered public comments based on the proposals in the NPRM, addressed those comments in the docket, and discussed the proposals with the members of the GPAC and any public representatives in attendance.
This final rule is expected to produce a safety benefit that addresses a congressional mandate and a NTSB safety recommendation and which can be implemented at relatively minor cost; similar regulations have been effective when applied to single-family residences. Further, industry has already shown a willingness to expand EFV applications, recognizing that EFVs have the potential to avert high-cost, low-probability events that, while absent in the dataset for multifamily residences, can still occur.
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). PHMSA issues pipeline safety regulations applicable to interstate and intrastate pipelines. The requirements in this rule apply to operators of distribution pipeline systems, which are primarily intrastate pipeline systems. Under 49 U.S.C. 60105, a State may regulate an intrastate pipeline facility or intrastate pipeline transportation after submitting a certification to PHMSA. Thus, State pipeline safety regulatory agencies with valid certifications on file with PHMSA will be the primary enforcers of the safety requirements proposed in this NPRM. Under 49 U.S.C. 60107, PHMSA provides grant money to participating States to carry out their pipeline safety enforcement programs. Although a few States choose not to participate in the natural gas pipeline safety grant program, every State has the option to participate. This grant money is used to defray additional costs incurred by enforcing the pipeline safety regulations.
PHMSA has concluded this final rule does not include any regulation that: (1) Has substantial direct effects on States, relationships between the national government and the States, or distribution of power and responsibilities among various levels of government; (2) imposes substantial direct compliance costs on States and local governments; or (3) preempts State law. Therefore, the consultation and funding requirements of Executive Order 13132 (August 10, 1999; 64 FR 43255) do not apply.
The Regulatory Flexibility Act (5 U.S.C. 601
This final rule requires gas pipeline operators to comply with the new EFV installation requirements. The Small Business Administration (SBA) criteria for defining a small business in the natural gas pipeline distribution industry is one that employs less than 1000 employees as specified in the North American Industry Classification System (NAICS) codes. The RFA defines “small governmental jurisdiction” as the government of a city, county, town, township, village, school district, or special district with a population less than 50,000.
To identify gas distribution operators affected by the proposed requirements that are small businesses or small governmental jurisdictions, PHMSA used information provided by Dun and Bradstreet. Dun and Bradstreet provides PHMSA with estimates of small business classifications based on SBA size standards for operators that file an annual report, along with a flag for public sector entities that is based on information such as entity name and NAICS code. These data indicate that approximately 60 percent of affected operators are public entities; among these, the share that are small governmental jurisdictions is not known. Among the private sector entities, approximately one-third are small entities according to the SBA size definition for their NAICS code. The most common of these is NAICS
However, PHMSA determined that this rule does not have a significant economic impact on a substantial number of small entities. While the natural gas distribution industry includes many small entities, including both small businesses and small governmental jurisdictions, the impacts of the rule are clearly
Accordingly, the head of the agency certifies under Section 605(b) of the RFA that this final rule will not have a significant economic impact on a substantial number of small entities because the additional costs are minimal.
This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It would not result in costs of $147.6 million, adjusted for inflation, or more in any one year to State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the final rule. Installation of EFVs and curb valves significantly protects the safety of the public and is technically and economically feasible.
PHMSA analyzed this final rule in accordance with section 102(2)(c) of the National Environmental Policy Act (42 U.S.C. 4332), the Council on Environmental Quality regulations (40 CFR parts 1500-1508), and DOT Order 5610.1C, and has determined that this action will not significantly affect the quality of the human environment. An environmental assessment of this final rule, which explains this determination, is available in the docket.
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this rule does not have tribal implications and does not impose substantial direct compliance costs on Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply.
This final rule is not a “significant energy action” under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). It is not likely to have a significant adverse effect on supply, distribution, or energy use. Further, the Office of Information and Regulatory Affairs has not designated this final rule as a significant energy action.
Pursuant to 5 CFR 1320.8(d), PHMSA is required to provide interested members of the public and affected agencies with an opportunity to comment on information collection and recordkeeping requests. As a result of the requirements of this rulemaking, the following information collection impacts are expected:
PHMSA is revising § 192.383 to require the installation of EFVs on applications beyond SFRs that are currently required. Further, PHMSA is adding § 192.385, which would require the installation of manual service line shut-off valves. As a result, PHMSA wants to track the number of new installations related to these provisions on an annual basis. This will change the Gas Distribution Annual Report, which is contained in the currently approved information collection, titled “Annual Reports for Gas Distribution Operators,” identified under OMB Control Number 2137-0629. PHMSA is revising the Gas Distribution Annual Report to collect the number of EFVs installed on multifamily dwellings and small commercial businesses and the number of manual service line shut-off valves installed. Currently, operators are required to submit the total number of EFVs installed on SFRs and the total number of EFVs within their systems. Therefore, PHMSA does not expect operators to experience an increase in burden beyond that already incurred for the Gas Distribution Annual Report. PHMSA has submitted an information collection revision request to OIRA to cover the components of this data collection. The request is under review and pending approval. PHMSA will publish a subsequent notice in the
Section 192.383 of this final rule will require operators to notify customers of their right to request the installation of EFVs. Operators have multiple options for fulfilling this requirement, including adding a short statement to customer bills, incorporating a public awareness message on the company Web site, incorporating the notification on bill stuffers or in new customer packets, and posting a notice in a prominent location (for master-meter/small LPG operators). PHMSA estimates that approximately half of the 6,237 operators categorized as either master-meter operators or small LPG systems will be impacted, resulting in 3,119 affected operators. This estimate is based on the premise that only half of these operators have systems that can accommodate an EFV. PHMSA also estimates that 1,329 gas distribution operators will be impacted. Therefore, PHMSA estimates a total impacted community of 4,448 (3,119 master-meter/small LPG operators and 1,329 gas distribution operators). PHMSA estimates that each impacted operator will take approximately 1 hour per year to create and complete this notification. PHMSA expects a vast majority of notifications to be made electronically, and, as such, expects the recordkeeping of these documents to be automatic and self-executing upon saving such documents. Consequently, PHMSA expects there to be no additional burden to the operator for saving the notifications for recordkeeping purposes. PHMSA estimates the total annual cost of this provision at $280,713 per year (4,448 operators * 1 hour/operator * $63.11/hour
As a result of the changes listed above, PHMSA is submitting an
Total Annual Responses: 1,446.
Total Annual Burden Hours: 23,136.
Total Annual Responses: 4,448 responses.
Total Annual Burden Hours: 4,448 hours.
Requests for a copy of this information collection should be directed to Angela Dow, Office of Pipeline Safety (PHP-30), Pipeline and Hazardous Materials Safety Administration (PHMSA), 2nd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, Telephone 202-366-4595.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document may be used to cross-reference this action with the Unified Agenda.
Excess flow valve installation, Excess flow valve performance standards, Pipeline safety, Service lines.
In consideration of the foregoing, PHMSA is amending 49 CFR part 192 as follows:
49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60110, 60113, 60116, 60118, 60137, and 49 CFR 1.97.
(a) Excess flow valves (EFVs) to be used on service lines that operate continuously throughout the year at a pressure not less than 10 p.s.i. (69 kPa) gage must be manufactured and tested by the manufacturer according to an industry specification, or the manufacturer's written specification, to ensure that each valve will:
(a)
(b)
(1) A single service line to one SFR;
(2) A branched service line to a SFR installed concurrently with the primary SFR service line (
(3) A branched service line to a SFR installed off a previously installed SFR service line that does not contain an EFV;
(4) Multifamily residences with known customer loads not exceeding 1,000 SCFH per service, at time of service installation based on installed meter capacity, and
(5) A single, small commercial customer served by a single service line with a known customer load not exceeding 1,000 SCFH, at the time of meter installation, based on installed meter capacity.
(c)
(1) The service line does not operate at a pressure of 10 psig or greater throughout the year;
(2) The operator has prior experience with contaminants in the gas stream that could interfere with the EFV's operation or cause loss of service to a customer;
(3) An EFV could interfere with necessary operation or maintenance activities, such as blowing liquids from the line; or
(4) An EFV meeting the performance standards in § 192.381 is not commercially available to the operator.
(d)
(e)
(1) Except as specified in paragraphs (c) and (e)(5) of this section, each operator must provide written or electronic notification to customers of their right to request the installation of an EFV. Electronic notification can include emails, Web site postings, and e-billing notices.
(2) The notification must include an explanation for the service line customer of the potential safety benefits that may be derived from installing an EFV. The explanation must include information that an EFV is designed to shut off the flow of natural gas automatically if the service line breaks.
(3) The notification must include a description of EFV installation and replacement costs. The notice must alert the customer that the costs for maintaining and replacing an EFV may later be incurred, and what those costs will be to the extent known.
(4) The notification must indicate that if a service line customer requests installation of an EFV and the load does not exceed 1,000 SCFH and the conditions of paragraph (c) are not present, the operator must install an EFV at a mutually agreeable date.
(5) Operators of master-meter systems and liquefied petroleum gas (LPG) operators with fewer than 100 customers may continuously post a general notification in a prominent location frequented by customers.
(f)
(g)
(a)
(b)
(c)
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Final rule.
The Federal Motor Carrier Safety Administration (FMCSA) adopts, as final, certain regulations required by the Fixing America's Surface Transportation Act (FAST Act) enacted on December 4, 2015. The involved statutory changes went into effect on October 1, 2016, and require that FMCSA make conforming changes to its regulations to ensure they are current and consistent with the statutory requirements. Adoption of these rules is a nondiscretionary, ministerial action that FMCSA may take without issuing a notice of proposed rulemaking and receiving public comment, in accordance with the good cause exception available to Federal agencies under the Administrative Procedure Act.
This final rule is effective October 14, 2016. Petitions for Reconsideration must be received by the Agency no later than November 14, 2016.
Kathryn Sinniger, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590; by telephone at (202) 493-0908, or by electronic mail at
This rule makes nondiscretionary, ministerial changes to FMCSA regulations that are required by the FAST Act (Pub. L. 114-94, 129 Stat. 1312, December 4, 2015). The FAST Act made several notable changes to the grant programs administered by FMCSA. For example, it consolidated the Border Enforcement, New Entrant, and Performance and Registration Information Systems Management (PRISM) grants into the formula Motor Carrier Safety Assistance Program (MCSAP) grant. Each State is now required to fully participate in the PRISM program by October 1, 2020, as a condition to receive funding under MCSAP. The FAST Act also created a standalone High Priority financial assistance (High Priority) Program with two major purposes: activities related to motor carrier safety and Innovative Technology Deployment (ITD). The ITD program modifies and replaces the FMCSA's Commercial Motor Vehicle Information Systems and Networks (CVISN) program. Also, the Safety Data Improvement Program, which was previously a standalone grant program,
The impact of the FAST Act provisions to certify eligibility and allocate MCSAP and High Priority Program funds considered both individually and in the aggregate does not cross the threshold of economic significance; therefore a cost-benefit analysis is not required.
The economic impact of changes to make FMCSA's regulations consistent with the FAST Act provisions will not exceed the $100 million annual threshold specified by Executive Order 12866.
This rule is based on the FAST Act. Certain provisions of the FAST Act made mandatory, non-discretionary changes to FMCSA programs. The majority of these statutory changes went into effect retroactively on October 1, 2015; the Agency published a final rule on July 22, 2016 (81 FR 47714) which made these changes. However, the changes made in sections 5101 and 5106 of the FAST Act, which affect the Agency's MCSAP grants, did not take effect until October 1, 2016. This final rule makes the nondiscretionary, conforming changes required by FAST Act sections 5101 and 5106, which also relate to the MCSAP. Publication of today's rule triggers the 3-year window for the States to adopt compatible provisions under FMCSA's MCSAP program. 49 CFR 350.331(d), 350.335(a)(2), and part 355, App. A.
It is necessary to make conforming changes to ensure that FMCSA's regulations are current and consistent with the applicable statutes. The provisions implemented in this final rule are required by the following sections of the FAST Act:
1. Section 5101 Grants to States.
2. Section 5106 Motor Carrier Safety Assistance Program Allocation.
FMCSA is authorized to implement these statutory provisions by delegation from the Secretary of Transportation in 49 CFR 1.87.
Generally, agencies may promulgate final rules only after issuing a notice of proposed rulemaking and providing an opportunity for public comment under procedures required by the APA, as provided in 5 U.S.C. 553(b) and (d). Section 553(b)(3)(B), allows an exception from these requirements when notice and public comment procedures are “impracticable, unnecessary, or contrary to the public interest.” FMCSA finds that prior notice and opportunity for comment are unnecessary because the changes to the regulations found in this final rule are statutorily mandated, and the Agency is performing a nondiscretionary, ministerial act. For the same reason, FMCSA also finds that providing 30 day of advance notice prior to this rule becoming effective are unnecessary, pursuant to 5 U.S.C. 553 (d)(3).
FMCSA is aware of the regulatory reform requirements imposed by section 5202 of the FAST Act concerning public participation in rulemaking (49 U.S.C. 31136(g)). These requirements pertain to certain major rules, but because this final rule is not major, they are not applicable. In addition, the Agency finds that publication of an advance notice of proposed rulemaking under 49 U.S.C. 31136(g)(1)(A) or completion of a negotiated rulemaking under 49 U.S.C. 31136(g)(1)(B), is unnecessary and contrary to the public interest in accordance with the waiver provision in 49 U.S.C. 31136(g)(3).
This section describes the conforming changes required due to the FAST Act changes. Today's rule focuses on portions of the FAST Act that are non-discretionary.
FMCSA is also including here a table of affected sections of the Code of Federal Regulations (CFR), which will cross-reference corresponding requirements of the FAST Act. This table will make it easier for the reader to move back and forth between the revised regulations and the corresponding section(s) of the FAST Act.
Section 5101 of the FAST Act made several revisions to existing provisions found in title 49 of the United States Code (U.S.C.). Section 5101(a) enacted a new version of 49 U.S.C. 31102, renamed “Motor Carrier Assistance Program.” The changes made to section 31102 are outlined below. The FAST Act added the terms “Federally recognized Indian tribes and other persons” as those who could work in partnership with the Agency in 49 U.S.C. 31102(b)(1), so we are making corresponding changes in §§ 350.101, 350.103, and 350.107 of the regulations.
In 49 U.S.C. 31102(c)(2)(B), the FAST Act replaced the reference to the State motor vehicle safety agency with reference to a “lead State commercial motor vehicle safety agency.” FMCSA makes this change throughout part 350. In addition, the FAST Act changed section 31102(c)(2) by revising the order of subsections (A) through (Y) and added new subsections (Z) through (BB). These changes are reflected in §§ 350.201 and 350.211. Of particular note is subsection (Z), which requires “that the State agrees to fully participate in the Performance and Registration Information System Management under 49 U.S.C. 31106(b) not later than October 1, 2020” or “an alternative approach for identifying and immobilizing a motor carrier with serious safety deficiencies in a manner that provides an equivalent level of safety.” This provision is reflected in § 350.201(aa) and § 350.211(x).
The Fast Act moved the existing language of 49 U.S.C. 31102(b)(3) on disapproval of a State plan to subsection (i)(2) of U.S.C. 31102. The Agency updated the regulatory language in § 350.207 to reflect the changes.
The FAST Act added 49 U.S.C. 31102(f)(4)(B), which creates additional allowances for the States when determining their average levels of expenditure for purposes of maintenance of effort. States are allowed to exclude expenditures for activities related to border enforcement and new entrant safety audits. This addition is reflected in § 350.301(b)(2).
The FAST Act also added paragraph (h) of 49 U.S.C. 31102 (existing 31102(c)), to describe an additional area where the grants may be used to enforce other laws. Subsection (1)(B) includes the “detection of and enforcement actions taken as a result of criminal activity including the trafficking of human beings, in a commercial motor vehicle or by any occupant, including the operator.” The Agency updated the language in § 350.309 to reflect this change.
Section 31102(k)(2)(B)(i-iv) now specifies what percentage of MCSAP funds may be withheld when a State does not follow its submitted plan or fails to enforce State regulations adequately. These criteria are reflected in § 350.215.
Section 31102(l) is added by the FAST Act, and it describes the High Priority Program funded for the purposes of improved motor carrier safety and Innovative Technology Deployment. This is a financial assistance program, and, is available to a wider audience and described throughout part 350. For reference, the current Safety Data Improvement Program falls under this new High Priority program.
Section 31104 is revised by the FAST Act section 5101(c), and paragraph (b) describes the Federal and recipient shares of Federal financial assistance agreements as at least 85 percent. Paragraph (e) provides that the Secretary shall establish eligible activities for each Federal financial assistance agreement in a notice of funding availability. Paragraph (f) describes the period of availability for the Federal financial assistance agreements. Paragraph (g) describes the initial date of availability for the Federal financial assistance agreements.
Paragraphs (b) and (d)-(g) of section 5101 of the FAST Act do not require corresponding changes in the regulations at this time.
Section 5106 of the FAST Act requires the establishment of a working group to recommend a new MCSAP allocation formula reflecting certain factors specified in the statute. However, paragraph (d) of section 5106 outlines interim funding rules to be used until the new formula is established. The interim amount, calculated by utilizing the MCSAP allocation formula used in fiscal year 2016 plus the average of the funding awarded (or other equitable amounts) to a State in fiscal years 2013, 2014, and 2015 for border enforcement and new entrant grants, is reflected in § 350.323. Likewise, § 350.323 has been revised to include the caveat, also found in section 5106(d), that the initial amounts resulting from the calculation described above be adjusted to ensure that, subject to the availability of funding, for each State, the amount shall
The following is a description of the changes to Part 350 as a result of the requirements of the FAST Act. These changes are described in numerical order by CFR citation. FMCSA also made conforming changes to the regulatory language as well as editorial corrections, so that the regulations do not conflict with the FAST Act.
In accordance with the FAST Act, section 5101(a), adding section 31102(l), FMCSA changes the heading of § 350.101 to add a reference to a High Priority Program. Paragraph (a) is changed by adding the word “State” to clarify that it is referencing State safety rules, regulations and standards. Paragraph (b) is added to describe the High Priority Program.
In the undesignated introductory text of § 350.103, FMCSA adds a reference to “States, local government agencies, other political jurisdictions, federally recognized Indian tribes, and other organizations and persons” which are eligible for the High Priority Program, as stated in the FAST Act, section 5101(a), adding 49 U.S.C. 31102(l).
FMCSA removes the definitions of “High Priority Activity Funds,” and “New Entrant Funds” Definitions are added for “Innovative Technology Deployment Funds,” “Lead State Agency,” “Level of effort,” “Maintenance of effort,” and “Plan.”
In the definitions of “10-year average accident rate” and “Accident rate,” the reference to FMCSA is changed to Federal Highway Administration.
In the definition for “Basic Program Funds,” the references for High Priority Activity Funds and New Entrant Funds are removed.
FMCSA adds the words “or the Plan” to the definition of “Commercial Vehicle Safety Plan (CVSP).”
FMCSA adds a definition for “New Entrant Safety Audits” to describe the requirement under the FAST Act, section 5101(a), amending 49 U.S.C. 31102(c)(2)(Y).
In the definition of “Operating Authority,” a reference to 49 U.S.C. 31144 is added.
“State or States,” is moved here from § 350.107 since it applies to all of part 350.
The heading for § 350.107 is changed to replace the word “jurisdictions” with “entities,” to add “under this part,” and to remove the reference to MCSAP.
The Agency redesignates the existing section as paragraph (a) and adds a reference to MCSAP at the beginning of the paragraph. The definition of “State or States,” is moved to the definition section in § 350.105.
In accordance with the FAST Act, section 5101(a), adding 49 U.S.C. 31102(l), we added a new paragraph (b) to section 350.107 that describes the entities eligible for funding in the High Priority Program.
FMCSA adds “
In accordance with the FAST Act, section 5101(a), adding 49 U.S.C. 31102(l), the Agency adds § 350.110 to describe the national High Priority Program elements.
The FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(A-BB) requires amendments to the conditions a State must qualify for MCSAP funds.
In § 350.201, the adjective MCSAP is added to the heading. In paragraph (a) the words “standards, and orders” are added. Paragraph (b) is not changed. The word “Lead” is added to paragraph (c) to reflect the agency responsible for the plan throughout the States. In paragraphs (d) and (e), the words “standards, and orders” are added to reflect the statutory language.
Paragraph (f) is rewritten to cross-reference the maintenance of effort requirements now re-codified in § 350.301 in accordance with FAST Act section 5101(a), adding 49 U.S.C. 31102(f). In paragraph (g), the words “legal authority for” are removed. The Agency removes the words “prepare and submit” and replaces them with “provide” in paragraph (h). Paragraph (i) is changed to reflect the language of the FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(G).
In paragraph (j) the word “declare” is replaced with “demonstrate.” Paragraph (k) has no changes. In paragraph (l) the words “other CMV safety enforcement programs” are replaced with “development and implementation of the programs to improve motor carrier, CMV, and driver safety.” Paragraph (m) is unchanged.
Paragraph (n) reflects the addition of the words “and data systems” to “FMCSA information technology.” No changes are made to paragraphs (o) and (p). Paragraph (q)(1) and (2) are the same, however, section 5101(a) of the FAST Act adding 49 U.S.C. 31102(c)(2)(O), required a change to (3) to reflect “activities related to criminal interdiction,” not only those “affecting the transportation of controlled substances.”
Existing paragraph (r) is removed. Existing paragraph (s) becomes new paragraph (r) and is not changed. Existing paragraph (t) becomes new paragraph (s) and is changed by updating the citations. New paragraph (t) is moved from existing paragraph (u) and simplified. Existing paragraph (v) becomes new paragraph (u) and removes the words “MCSAP agencies have policies that stipulate.” New paragraph (v) is existing paragraph (w) revised. Existing paragraph (x) is now new paragraph (w) with introduction of “provide that the State will.” In making these changes, paragraphs (r) and (v) are no longer conditions of participation.
New paragraph (x) is derived from existing paragraph (y) with the addition of “excluding a weigh station,” as required by the FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(W). New paragraph (y) is existing paragraph (z) with changed CFR citations and one additional U.S.C. citation. New paragraphs (z), (aa), (bb), and (cc) are copied directly from the FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(Y-BB).
The contents of existing § 350.329 are moved to new § 350.203. The changes and the reorganization conform to the requirements of the FAST Act, section 5101(a), adding 49 U.S.C. 31102(l). The heading of the section is changed; it uses the term “applicant,” clarifying that High Priority program funding is available to other entities identified in
FMCSA requires the State to submit its commercial vehicle safety plan “to FMCSA,” instead of to “the Division Administrator/State Director.”
As stated in the FAST Act section 5101(c), amending 49 U.S.C. 31104(e), FMCSA adds a new § 350.206 to demonstrate that FMCSA will publish a Notice of Funding Availability (NOFA) to establish criteria for eligible activities to be funded under the High Priority Program, paralleling § 350.205.
To conform to the language of the FAST Act, section 5101(a), adding 49 U.S.C. 31102(i), FMCSA changes paragraph (b) by adding that FMCSA will give the State a written explanation for withholding approval and allow the State to modify and resubmit the Plan. In paragraph (c), FMCSA adds that disapproval of the Plan is final only for “that fiscal year.” Paragraph (d) is unchanged.
The FAST Act did not amend the current process, but separated the MCSAP and High Priority Programs (section 5101(a), adding 49 U.S.C. 31102(l)). FMCSA adds a new § 350.208 to state the response an applicant will receive to a grant application, paralleling § 350.207 to demonstrate the separation of the MCSAP and High Priority Grant Programs. Paragraph (a) covers grant approvals, and paragraph (b) covers grant denials.
FMCSA adds new § 350.210 to refer applicants for High Priority Program Funding to new § 350.203, which describes the conditions the applicant must meet to qualify, which were established in 49 U.S.C. 31102(l), and to parallel existing § 350.209.
Section 350.211 describes the format of the certification required by § 350.209. It is revised and reorganized to conform to the language of the FAST Act, section 5101(a), amending 49 U.S.C. 31102. The introductory text is unchanged. In paragraph ((a), FMCSA added references to “standards and orders” and “the standards and orders of the Federal Government.” In ((b), the language was changed to include references to “Lead State Agency” and standards and orders. Paragraph (c) is changed by adding a reference to standards and orders. In paragraph (d), FMCSA adds “or other method a State may use that is adequate to obtain the necessary information” as an alternative to right of entry. Paragraph (e) is not changed. In (f), FMCSA adds a reference to “investigations.” Paragraph (g) is modified by substituting the word “demonstrate” for “declare.” Paragraph (h) is based on existing paragraph 8, but completely changed to conform to the FAST Act, section 5101(a), creating 49 U.S.C. 31102(f). A new paragraph (i) is added to ensure States protect the effectiveness of programs to improve safety.
Existing paragraphs 9 through 14 are redesignated as new paragraphs (j) through (o), and conformed to the language of the FAST Act, section 5101(a), adding 31102(c)(2)(J)-(O). New paragraph (j) is unchanged. In new paragraph (k), the word “fines” is changed to the word “sanctions”; and the word “equitable” is changed to the word “reasonable” per section 5101(c) of the FAST Act. New paragraph (l) is changed by adding the requirement that the State “dedicate sufficient resources” to a program that provides FMCSA with information. In new paragraph (m), FMCSA adds a new reference to 23 U.S.C. 148(c). FMCSA adds “regulations” to the list of items a State should enforce in new paragraph (n). In new paragraph (o), FMCSA removes the reference to MCSAP Agencies. Existing paragraph 15 is removed.
New paragraph (p) is the same as existing paragraph 16. New paragraph (q) substitutes the word “registration” for the phrase “operating authority” throughout, and adds a reference to the U.S. Code. In paragraph (r), FMCSA states that the State “will cooperate in the enforcement of financial responsibility” rather than “enforce the financial responsibility requirements.” It also adds a reference to the U.S. Code and removes a cross reference to § 392.9a. Paragraphs (s) and (t) remain the same. Paragraph 21, new paragraph (u), is changed by adding language to clarify that station means bus station. The phrase “excluding a weigh station” is added to clarify that planned stops do not include weigh stations, as required by the FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(W). In paragraph (v), cross references to the CFR are added.
Paragraphs (w) through (z) are new and required by the FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(Y)-(Z). Paragraph (w) requires the State to conduct safety audits of new entrant motor carriers. The State must also verify the work of third parties that conduct safety audits on the State's behalf. Paragraph (x) provides that the State must certify that it either participates in the PRISM or demonstrates an alternative approach for identifying and taking action on out of service motor carriers.
As amended by the FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(AA), paragraph (y) provides that a border State must conduct a border CMV safety program or forfeit MCSAP funds based on border-related activities. In accordance with the FAST Act, section 5101(a) adding 49 U.S.C. 31102(c)(2)(BB), if a State meets all the MCSAP requirements and funds operations and maintenance costs associated with innovative technology deployment, paragraph (z) requires the State to certify that it agrees to comply with “all MCSAP requirements and funds operation and maintenance costs associated with Innovative Technology Deployment with MCSAP funds” and “Innovative Technology Deployment requirements established pursuant to 49 CFR 350.310 and 350.311.”
As required by the FAST Act, section 5101(a), creating 49 U.S.C. 31102(c)(2)(O), section 350.213(b)(3) is changed by adding the word “Criminal,” clarifying the type of interdiction activities, and changing the paragraph so it no longer covers only the transportation of controlled substances. The changes to paragraph (b)(4) include adding a reference to 49
Pursuant to section 5101(a) of the FAST Act, adding 49 U.S.C. 31102(k), section 350.215(e) is completely revised. It now provides that an adverse decision will result in withdrawing approval of the plan and withholding all MCSAP funding or finding the State in noncompliance and withholding between 5 and 50 percent of the funding over the years of noncompliance. The remainder of the regulation remains unchanged.
Section 350.301(a) clarifies that the requirements apply each fiscal year to the “Lead State Agency.” It also clarifies that by “average aggregate expenditure” it means “level of effort.” Paragraph (b) is restated to allow States to exclude expenditures for federally sponsored demonstration and pilot CMV safety programs, strike forces, activities related to border enforcement, and for new entrant safety audits. However the State must exclude State matching funds, as currently required. Paragraph (c) contains language changes to conform to the FAST Act.
To comply with the FAST Act section 5101(a), adding 49 U.S.C. 31102(f), paragraphs (d) and (e) are added and paragraphs (a)-(c) are revised. Paragraph (d) allows States to use certain amounts as part of the State's maintenance of effort. Paragraph (e) provides that FMCSA may waive or modify the requirements of § 350.301 at the request of the State. Paragraph (e) provides that a State may request, and FMCSA may make, a reasonable adjustment to the level of effort required.
The heading of § 350.303 is revised to clarify that this section refers to both the MCSAP and High Priority Program. As required by FAST Act, section 5101(c), amending 49 U.S.C. 31104(b), new paragraph (a) increases the percent of eligible costs that FMCSA will reimburse from 80 percent to at least 85 percent. It changes the reference to “costs incurred in the administration of an approved CVSP” to “costs incurred under the MCSAP and High Priority Program.” Paragraph (b) makes language changes and also changes the cross reference from 49 CFR part 18, which has been removed, to 2 CFR part 200, the Office of Management and Budget provision dealing with “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.” FMCSA adds paragraph (c) to provide that, when “. . . the amounts are not applied to the maintenance of effort required under § 350.301,”States may use amounts generated under 49 U.S.C. 14504a as part of the State's match required for MCSAP, as required in the FAST Act section 5101(a) which revised 49 U.S.C. 31102(g).
Section 350.305, including the heading, is changed by adding references to MCSAP to clarify that this section refers to MCSAP matching funds. The rest of the provision remains unchanged.
As required by the FAST ACT section 5101(c), amending 49 U.S.C. 31104(f), FMCSA adds a new § 350.308 to specify how long High Priority Program funds are available, paralleling existing § 350.307. Paragraph (a) describes how long funds for CMV safety activities will be available. Paragraph (b) states how long funds for Innovative Technology Deployment activities will be available.
In § 350.309, existing paragraph (c) becomes paragraph (c)(1), and the language is changed to conform to the FAST Act, section 5101(a), adding 49 U.S.C. 31102(h), In paragraph (c)(1)(ii), the reference to “controlled substance” is replaced with “criminal activity, including the trafficking of human beings.”
FMCSA moves the content of existing paragraph (d) to paragraph (c)(2), and revises it. In paragraph (c)(2)(i), the reference to fiscal year 2003 is removed. In paragraph (c)(2)(ii), the percent of MCSAP Basic funds available for enforcement activities related to non-CMVs is raised from 5 percent to 10 percent. FMCSA removes existing paragraph (d).
FMCSA adds new § 350.310 to describe the activities and programs eligible for funding under the new High Priority Program, in parallel with § 350.309. New § 350.310 contains some of the information in existing § 350.319, but has been revised and reorganized to reflect the FAST Act, section 5101(a), adding 49 U.S.C. 31102(l). Paragraphs (a) through (e) provide a list of eligible activities. Paragraph (f) makes both Non-Lead State Agencies and Lead State Agencies supporting PRISM eligible for High Priority Program funding. Paragraph (g) states that the conduct of Safety Data Improvement Projects is an eligible activity for some entities and references the requirements for such a project. Paragraph (h) includes the improvement of CMV safety and compliance with regulations on the list of eligible activities. Paragraph (i) authorizes reimbursement for the implementation and maintenance of Innovative Technology Deployment of CMV information systems and networks.
FMCSA adds § 350.311(a) to provide that FMCSA shall establish criteria for eligible activities and publish those criteria in accordance with the FAST Act, section 5101(c), amending 49 U.S.C. 31104(e). Existing § 350.311 becomes new § 350.311(b), and language and cross references are changed from 49 CFR part 18, which has been removed, to 2 CFR part 200, the Office of Management and Budget provision dealing with “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.”
FMCSA completely revises § 350.313 to reflect the new organization of grants under the FAST Act. Because of grant program consolidation under sections 5101(a) and 5101(c) of the FAST Act, MCSAP funds are now only allocated in two ways, so paragraphs (a) (1) and (2), (b) and (c) are deleted. The remaining language is unchanged but renumbered. Paragraph (a) provides that Basic Program Funds are allocated in accordance with § 350.323. Paragraph (b) specifies that Incentive Funds are allocated in accordance with § 350.327.
Existing § 350.319 is removed consistent with the FAST Act's revision of the High Priority Program, section 5101(a), adding 49 U.S.C. 31102(l). Some elements of this section are moved to § 350.310.
Section 350.321 is removed, consistent with section 5101(e) of the FAST Act's removal of New Entrant Funds as a separate grants program and inclusion of them under the general MCSAP funds.
FMCSA alters paragraph (a) by adding the word “First” to indicate the order in which these procedures occur. As required by the FAST Act, section 5106(d), paragraphs (b)-(d) are added. FMCSA adds a new paragraph (b) to provide that the funding for certain grants awarded to a State will be averaged. New paragraph (c) provides that the total amount of MCSAP Basic funding is the sum of the amounts in paragraphs (a) and (b). In new paragraph (d), FMCSA explains how and why the Agency will adjust the total amount of MCSAP Basic funding. New paragraph (e) includes part of existing paragraph (b), and the language remains unchanged by the FAST Act, but the table has been removed.
The contents of existing § 350.329 are moved to § 350.203 and revised. Existing § 350.329 is removed.
Section 331(a) is clarified and changed to provide that the State must submit copies of any new or amended State law or regulation on CMV safety to FMCSA, as well as review them. Existing paragraph (b) is removed, as it pertains to the review of a State law or regulation. Existing paragraphs (c) and (d) become new paragraphs (b) and (c). New paragraph (b) is changed by revising the introduction to remove the references to the “annual review” and the “annual CVSP,” instead referencing just the review and CVSP.
In accordance with the FAST Act, section 5101(a), adding 49 U.S.C. 31102(k), in § 350.335, FMCSA combines existing paragraph (a), (b), and (d) into a new paragraph (a) and adds an introductory paragraph. In new paragraphs (a)(1) and (2), FMCSA removes the references to Basic Program Funds and Incentive Funds. In new paragraph (a)(3) the reference to Basic Program is changed to MCSAP Basic Program. Existing paragraph (c) is removed. Existing paragraph (e) becomes new paragraph (b)
FMCSA has determined that this final rule is not a significant regulatory action within the meaning of Executive Order (E.O.) 12866, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), and is also not significant within the meaning of DOT regulatory policies and procedures (44 FR 11034, February 26, 1979). As explained above, this final rule is strictly ministerial in that it incorporates nondiscretionary statutory requirements. These statutory changes went into effect on October 1, 2016. The regulatory changes included in this rule are necessary to make FMCSA's regulations consistent with the FAST Act, and their economic impact will not exceed the $100 million annual threshold. Any costs associated with this action are attributable to the nondiscretionary statutory provisions. This final rule is not expected to generate substantial congressional or public interest. Therefore, a full regulatory impact analysis has not been conducted, nor has there been a review by the Office of Management and Budget (OMB).
Although a full regulatory evaluation is unnecessary because the level of economic significance does not exceed the $100 million annual threshold, FMCSA considered the net impact of the FAST Act provisions implemented by this final rule. This rule's provisions provide reimbursements for technology, staffing, enforcement, maintenance, and training activities related to FMCSA regulations and should ease the economic burden on regulated entities. The net impacts of these provisions are expected to be small and affect a small number of individuals and businesses.
Pursuant to the Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601
In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA point of contact, Thomas Liberatore, listed in the
Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the SBA's Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy ensuring the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $155 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2014 levels) or more in any 1 year.
This final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), nor does it revise any existing approved collections of information.
A rule has implications for Federalism under section 1(a) of
FMCSA has determined that this rule would not impose substantial direct costs on States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.
This final rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988 to minimize litigation, eliminate ambiguity, and reduce burden.
E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies issuing “economically significant” rules to include an evaluation of the regulation's environmental health and safety effects on children, if the agency has reason to believe the regulation may disproportionately affect children. FMCSA has determined this final rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, this regulatory action could not pose an environmental or safety risk that would disproportionately affect children.
FMCSA reviewed this final rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have takings implications.
Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. This rule does not require the collection of personally identifiable information (PII), and the Agency therefore finds that there will be no impact on the privacy of individuals.
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency which receives records contained in a system of records from a Federal agency for use in a matching program.
The E-Government Act of 2002, Public Law 107-347, 208, 116 Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct PIA for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. FMCSA has therefore not conducted a privacy impact assessment.
The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this action.
FMCSA analyzed this action under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. FMCSA determined that it is not a “significant energy action” under that E.O. because it is not economically significant and is not likely to have an adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.
This final rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (
FMCSA analyzed this rule in accordance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321,
In addition to the NEPA requirements to examine impacts on air quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401,
Additionally, FMCSA evaluated the effects of this final rule in accordance with Executive Order 12898 and determined that there are no environmental justice issues associated with its provisions nor any collective environmental impacts resulting from its promulgation. Environmental justice issues would be raised if there were a “disproportionate” and “high and adverse impact” on minority or low-income populations.
Grant programs-transportation, Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
49 U.S.C. 13902, 31101-31104, 31108, 31136, 31141, 31161, 31310-31311, 31502; and 49 CFR 1.87.
(a)
(b)
The purpose of this part is to ensure that the Federal Motor Carrier Safety Administration (FMCSA), and States, local government agencies, other political jurisdictions, federally recognized Indian tribes, and other organizations and persons work in partnership to establish programs to improve motor carrier, CMV, and driver safety to support a safe and efficient transportation system by—
(d) Assessing and improving State-wide performance by setting program goals and meeting performance standards, measures, and benchmarks.
The revisions and additions read as follows:
(a)
(b)
FMCSA may generally use these funds to support, enrich, or evaluate State CMV safety programs and to accomplish the objectives listed below:
(a) Increase public awareness and education on commercial motor vehicle safety.
(b) Target unsafe driving of commercial motor vehicles and noncommercial motor vehicles in areas identified as high risk crash corridors.
(c) Improve the safe and secure movement of hazardous materials.
(d) Improve safe transportation of goods and persons in foreign commerce.
(e) Demonstrate new technologies to improve commercial motor vehicle safety.
(f) Support participation in performance and registration information systems management developed under 49 U.S.C. 31106—
(1) For entities not responsible for submitting the CVSP under this part, or
(2) For entities responsible for submitting the CVSP under this part—
(i) Before October 1, 2020, to achieve compliance with the requirements of participation; and
(ii) Beginning October 1, 2020, or once compliance is achieved, whichever is sooner, for special initiatives or projects that exceed routine operations required for participation.
(g) Conduct Safety Data improvement Projects—
(1) That complete or exceed the requirements of the program developed to meet § 350.201(r) of this part for entities not responsible for submitting the CVSP under this part; or
(2) That exceed the requirements of the program developed to meet § 350.201(r) of this part for entities that are responsible for submitting the CVSP under this part.
(h) Otherwise improve commercial motor vehicle safety regulations.
To qualify for MCSAP Funds, each State must:
(a) Assume responsibility for improving motor carrier safety by adopting and enforcing State safety laws and regulations, standards, and orders that are compatible with Federal regulations, the FMCSRs (49 CFR parts 390-397) and the HMRs (49 CFR parts 107 (subparts F and G only), 171-173, 177, 178 and 180), and standards, and orders of the Federal Government, except as may be determined by the Administrator to be inapplicable to a State enforcement program.
(b) Implement performance-based activities, including deployment and maintenance of technology to enhance the efficiency and effectiveness of CMV safety programs.
(c) Designate a Lead State Agency responsible for administering the CVSP throughout the State.
(d) Give satisfactory assurances that the Lead State Agency has or will have the legal authority, resources, and qualified personnel necessary to enforce the FMCSRs and HMRs or compatible State laws or regulations, standards and orders in the CVSP.
(e) Give satisfactory assurances that the State will devote adequate resources to the administration of the CVSP including the enforcement of the FMCSRs, HMRs, or compatible State laws, regulations, standards, and orders throughout the State.
(f) Provide that the total expenditure of amounts of the Lead State Agency responsible for administering the Plan will be maintained at a level of effort each fiscal year in accordance with 49 CFR 350.301.
(g) Provide a right of entry (or other method a State may use that is adequate to obtain necessary information) and inspection to carry out the CVSP.
(h) Provide that all reports required in the CVSP under this section be available to FMCSA upon request.
(i) Provide that the Lead State Agency adopt the reporting standards and use the forms for recordkeeping, inspections, and investigations that FMCSA prescribes.
(j) Require all registrants of CMVs to demonstrate their knowledge of applicable FMCSRs, HMRs, or compatible State laws or regulations, standards, and orders.
(k) Grant maximum reciprocity for inspections conducted under the North American Inspection Standards through the use of a nationally accepted system that allows ready identification of previously inspected CMVs.
(l) Ensure that activities described in 49 CFR 350.309, if financed through MCSAP funds, will not diminish the effectiveness of the development and implementation of the programs to improve motor carrier, CMV, and driver safety.
(m) Ensure that the Lead State Agency will coordinate the CVSP, data collection and information systems, with the State highway safety improvement program under 23 U.S.C. 148(c).
(n) Ensure participation in appropriate FMCSA information technology and data systems and other information systems by all appropriate jurisdictions receiving funding under this section.
(o) Ensure information is exchanged with other States in a timely manner.
(p) Provide satisfactory assurances that the State will undertake efforts that will emphasize and improve enforcement of State and local traffic laws and regulations related to CMV safety.
(q) Provide satisfactory assurances that the State will address activities in support of the national program elements listed in § 350.109, including the following three activities:
(1) Activities aimed at removing impaired CMV drivers from the highways through adequate enforcement of regulations on the use of alcohol and controlled substances and by ensuring ready roadside access to alcohol detection and measuring equipment.
(2) Activities aimed at providing training to MCSAP personnel to recognize drivers impaired by alcohol or controlled substances.
(3) Activities related to criminal interdiction, including human trafficking, when conducted with an appropriate CMV inspection, and appropriate strategies for carrying out those interdiction activities, including interdiction activities that affect the transportation of controlled substances (as defined in section 102 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 802) and listed in part 1308 of title 21, Code of Federal Regulations) by any occupant of a CMV.
(r) Establish and dedicate sufficient resources to a program to ensure that accurate, complete, and timely motor carrier safety data are collected and reported, and to ensure the State's participation in a national motor carrier safety data correction system prescribed by FMCSA.
(s)(1) Provide that the State will enforce registration (
(2) Ensure that the State will cooperate in the enforcement of financial responsibility requirements under 49 U.S.C. 13906, 31138, 31139, and 49 CFR part 387.
(t) Ensure consistent, effective, and reasonable sanctions.
(u) Ensure that roadside inspections will be conducted at locations that are adequate to protect the safety of drivers and enforcement personnel.
(v) Provide that the State will include in the training manual for the licensing examination to drive a CMV and the training manual for the licensing examination to drive a non-CMV information on best practices for driving
(w) Provide that the State will conduct comprehensive and highly visible traffic enforcement and CMV safety inspection programs in high-risk locations and corridors.
(x) Except in the case of an imminent or obvious safety hazard, ensure that an inspection of a vehicle transporting passengers for a motor carrier of passengers is conducted at a bus station, terminal, border crossing, maintenance facility, destination, or other location where a motor carrier may make a planned stop (excluding a weigh station).
(y) Ensure that it transmits to roadside inspectors the notice of each Federal exemption under 49 U.S.C. 31315(b) and 49 CFR 390.23 and 390.25 provided to the State by FMCSA, including the name of the person granted the exemption and any terms and conditions that apply to the exemption.
(z) Except for a territory of the United States, conduct new entrant safety audits of interstate and, at the State's discretion, intrastate new entrant motor carriers under 49 U.S.C. 31144(g). The State must verify the quality of the work conducted by a third party authorized to conduct new entrant safety audits under 49 U.S.C. 31144(g) on its behalf and the State remains solely responsible for the management and oversight of the activities.
(aa) Agree to fully participate in performance and registration information systems management under 49 U.S.C. 31106(b) not later than October 1, 2020, by complying with the conditions for participation under paragraph (3) of that section, or demonstrate to the FMCSA an alternative approach for identifying and immobilizing a motor carrier with serious safety deficiencies in a manner that provides an equivalent level of safety.
(bb) In the case of a State that shares a land border with another country, conduct a border CMV safety program focusing on international commerce that includes enforcement and related projects or forfeit all funds based on border-related activities.
(cc) Comply with the requirements of the innovative technology deployment program in 49 U.S.C. 31102(l)(3) if the State funds operation and maintenance costs associated with innovative technology deployment with its MCSAP funding.
(a) States must meet the requirements of § 350.201, as applicable.
(b) If applicable, other applicants, as described in § 350.107, must meet the following conditions:
(1) Prepare a proposal in accordance with § 350.213, and coordinate the proposal with the Lead State Agency to ensure the proposal is consistent with State and national CMV safety program priorities.
(2) Prepare a proposal that is responsive to the notice of funding availability.
(3) Certify that the applicant has the legal authority, resources, and trained and qualified personnel necessary to perform the functions specified in the proposal.
(4) Designate a person who will be responsible for implementation, reporting, and administering the approved proposal and will be the primary contact for the project.
(5) Agree to fund up to 15 percent of the proposed request.
(6) Agree to prepare and submit all reports required in connection with the proposal or other conditions of the grant or cooperative agreement.
(7) Agree to use the forms and reporting criteria required by the Lead State Agency and/or the FMCSA to record work activities to be performed under the proposal.
(8) Certify that the local agency will impose sanctions for violations of CMV and driver laws and regulations that are consistent with those of the State.
(9) Certify participation in national databases appropriate to the project.
(a) The Lead State Agency must submit the State's CVSP to FMCSA, on or before August 1 of each year.
The FMCSA establishes and publishes application instructions and criteria for eligible activities to be funded with financial assistance agreements under this section in a notice of funding availability which is published at least 30 days before the financial assistance program application period closes.
(a) FMCSA will notify the State, in writing, within 30 days of receipt of the CVSP whether FMCSA—
(1) Approves the CVSP; or
(2) Withholds approval of the CVSP because it does not meet the requirements of this part, or is not adequate to ensure effective enforcement of the FMCSRs and HMRs or compatible State laws and regulations.
(b) If FMCSA withholds approval—
(1) FMCSA will give the State a written explanation of the reasons for withholding approval of the CVSP and allow the State to modify and resubmit the CVSP for approval.
(2) The State will have 30 days from the date of the notice to modify and resubmit the CVSP.
(c) Disapproval of a resubmitted CVSP is final for that fiscal year.
(d) Any State aggrieved by an adverse decision under this section may seek judicial review under 5 U.S.C. chapter 7.
(a) If the grant or cooperative agreement is approved, the applicant will receive a grant agreement to execute.
(b) If the grant or cooperative agreement is denied, the applicant will receive a letter of denial from the Agency.
An applicant for a High Priority Program Grant or cooperative agreement should refer to § 350.203. There is no separate certification for this program.
The State's certification must be consistent with the following content: I (name), (title), on behalf of the State (or Commonwealth) of (State), as requested by the Administrator as a condition of approval of a grant under the authority of 49 U.S.C. 31102, as amended, do hereby certify as follows:
(a) The State has adopted commercial motor carrier and highway hazardous materials safety regulations, standards and orders that are compatible with the FMCSRs and the HMRs, and the standards and orders of the Federal Government.
(b) The State has designated (name of Lead State Agency) as the Lead State Agency to administer the Commercial Vehicle Safety Plan throughout the State for the grant sought and (names of agencies) to perform defined functions under the CVSP. The Lead State Agency has the legal authority, resources, and qualified personnel necessary to enforce the State's commercial motor carrier, driver, and highway hazardous materials safety laws, regulations, standards, and orders.
(c) The State will obligate the funds or resources necessary to provide a matching share to the Federal assistance provided in the grant to administer the Plan submitted and to enforce the State's commercial motor carrier safety, driver, and hazardous materials laws, regulations, standards, and orders in a manner consistent with the approved Plan.
(d) The laws of the State provide the State's enforcement officials right of entry (or other method a State may use that is adequate to obtain the necessary information) and inspection sufficient to carry out the purposes of the CVSP, as approved, and provide that the State will grant maximum reciprocity for inspections conducted pursuant to the North American Standard Inspection procedure, through the use of a nationally accepted system allowing ready identification of previously inspected CMVs.
(e) The State requires that all reports relating to the program be submitted to the appropriate State agency or agencies, and the State will make these reports available, in a timely manner, to the FMCSA on request.
(f) The State has uniform reporting requirements and uses FMCSA-designated forms for record keeping, inspection, investigations, and other enforcement activities.
(g) The State has in effect a requirement that all registrants of CMVs demonstrate their knowledge of the applicable Federal or State CMV safety laws or regulations.
(h) The State must ensure that the total expenditure of amounts of the Lead State Agency will be maintained at a level of effort each fiscal year in accordance with 49 CFR 350.301.
(i) The State will ensure that MCSAP-funded enforcement of activities under 49 CFR 350.309 will not diminish the effectiveness of the development and implementation of the programs to improve motor carrier, CMV, and driver safety.
(j) The State will ensure that CMV size and weight enforcement activities funded with MCSAP funds will not diminish the effectiveness of other CMV safety enforcement programs.
(k) The State will ensure that violation sanctions imposed and collected by the State are consistent, effective, and reasonable.
(l) The State will:
(1) Establish and dedicate sufficient resources to a program to provide FMCSA with accurate, complete, and timely reporting of motor carrier safety information that includes documenting the effects of the State's CMV safety programs;
(2) Participate in a national motor carrier safety data correction program (DataQs);
(3) Participate in appropriate FMCSA systems including information technology and data systems and other information systems; and
(4) Ensure information is exchanged in a timely manner with other States.
(m) The State will ensure that the Plan, data collection, and information data systems are coordinated with the State highway safety improvement program under sec. 148(c) of title 23, U.S. Code. The name of the Governor's highway safety representative (or other authorized State official through whom coordination was accomplished) is ______. (Name)
(n) The State has undertaken efforts to emphasize and improve enforcement of State and local traffic laws and regulations as they pertain to CMV safety.
(o) The State will ensure that it has departmental policies stipulating that roadside inspections will be conducted at locations that are adequate to protect the safety of drivers and enforcement personnel.
(p) The State will ensure that MCSAP-funded personnel, including sub-grantees, meet the minimum Federal standards set forth in 49 CFR part 385, subpart C, for training and experience of employees performing safety audits, compliance reviews, or driver/vehicle roadside inspection.
(q) The State will enforce registration (
(r) The State will cooperate in the enforcement of financial responsibility requirements under 49 U.S.C. 13906, 31138, 31139, and 49 CFR part 387.
(s) The State will include, in the training manual for the licensing examination to drive a non-CMV and the training manual for the licensing examination to drive a CMV, information on best practices for safe driving in the vicinity of noncommercial and commercial motor vehicles.
(t) The State will conduct comprehensive and highly visible traffic enforcement and CMV safety inspection programs in high-risk locations and corridors.
(u) The State will ensure that, except in the case of an imminent or obvious safety hazard, an inspection of a vehicle transporting passengers for a motor carrier of passengers is conducted at a bus station, terminal, border crossing, maintenance facility, destination, or other location where motor carriers may make planned stops (excluding a weigh station).
(v) The State will transmit to roadside inspectors the notice of each Federal exemption under 49 U.S.C. 31315(b) and 49 CFR 390.23 and 390.25 as provided to the State by FMCSA, including the name of the entity granted the exemption and any terms and conditions that apply to the exemption.
(w) Except for a territory of the United States, the State will conduct safety audits of interstate and, at the State's discretion, intrastate new entrant motor carriers under 49 U.S.C. 31144(g). The State will verify the quality of the work conducted by a third party authorized to conduct safety audits under 49 U.S.C. 31144(g) on its behalf and the State remains solely responsible for the management and oversight of the activities.
(x) The State fully participates in the performance and registration information systems management under 49 U.S.C. 31106(b) not later than October 1, 2020, or demonstrates to FMCSA an alternative approach for identifying and immobilizing a motor carrier with serious safety deficiencies in a manner that provides an equivalent level of safety.
(y) In the case of a State that shares a land border with another country, the State will conduct a border CMV safety program focusing on international commerce that includes enforcement and related projects or it will forfeit all MCSAP funds based on border-related activities.
(z) If a State meets all MCSAP requirements and funds operation and maintenance costs associated with innovative technology deployment with MCSAP funds, the State agrees to comply with the Innovative Technology Deployment requirements established pursuant to 49 CFR 350.310 and 350.311.
(b) * * *
(3) Criminal interdiction activities, including human trafficking, and appropriate strategies for carrying out those interdiction activities, including interdiction activities affecting the transportation of controlled substances by any occupant of a CMV.
(4) Activities to enforce registration requirements under 49 U.S.C. 13902 and 31134 and to cooperate in the enforcement of financial responsibility requirements under 49 U.S.C. 13906, 31138 and 31139 and 49 CFR part 387.
(e) Any adverse decision will result in FMCSA—
(1) Withdrawing approval of the Plan and withholding all MCSAP funding; or
(2) Finding the State in noncompliance and withholding—
(i) Up to 5 percent of MCSAP funds during the fiscal year that the FMCSA notifies the State of its noncompliance;
(ii) Up to 10 percent of MCSAP funds for the first full fiscal year of noncompliance;
(iii) Up to 25 percent of MCSAP funds for the second full fiscal year of noncompliance; and
(iv) Not more than 50 percent of MCSAP funds for the third and any subsequent full fiscal year of noncompliance.
(a) Each fiscal year, the State must maintain the average aggregate expenditure (level of effort) of the Lead State Agency, exclusive of Federal funds and State matching funds, for CMV safety programs eligible for funding under this part at a level at least equal to the average level of that expenditure for fiscal years 2004 and 2005.
(b) In determining a State's average level of effort, FMCSA—
(1) May allow the State to exclude State expenditures for federally sponsored demonstration and pilot CMV safety programs and strike forces.
(2) May allow the State to exclude expenditures for activities related to border enforcement and new entrant safety audits;
(3) Shall require the State to exclude Federal funds; and
(4) Shall require the State to exclude State matching funds.
(c) The State must include costs associated with activities performed during the base period by the Lead State Agency that receives funds under this part. It must include only those activities which meet the current requirements for funding eligibility under the grant program.
(d) States may use amounts generated under 49 U.S.C. 14504a as part of the State's maintenance of effort, provided the amounts are not applied to the match required under 49 CFR 350.303.
(e) Waivers and Modifications—Upon the request of a State, FMCSA may waive or modify the requirements of this section for a total of 1 fiscal year per request if FMCSA determines that the waiver or modification is reasonable, based on circumstances described by the State.
(a) FMCSA will reimburse at least 85 percent of the eligible costs incurred under the MCSAP and High Priority Program.
(b) In-kind contributions are acceptable in meeting the matching share if they represent eligible costs as established by 2 CFR part 200 or FMCSA policy.
(c) States may use amounts generated under 49 U.S.C. 14504a as part of the State's match required for MCSAP, provided the amounts are not applied to the maintenance of effort required under § 350.301.
The Administrator waives the requirement for matching funds under the MCSAP for the Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands.
(a) Funds for CMV safety activities under 49 CFR 350.310(a)-(h) obligated to an entity will remain available for the rest of the fiscal year in which they were obligated and the next 2 full fiscal years.
(b) Funds for Innovative Technology Deployment activities under 49 CFR 350.310(i) obligated to a State will remain available for the rest of the fiscal year in which they were obligated and the next 4 full fiscal years.
The revision reads as follows:
(c) The following activities are also eligible for reimbursement when part of the approved Plan
(1) When accompanied by an appropriate North American Standard Inspection and inspection report—
(i) Enforcement of CMV size and weight limitations at locations, excluding fixed-weight facilities, such as near steep grades or mountainous terrains, where the weight of a CMV can significantly affect the safe operation of the vehicle, or at ports were intermodal shipping containers enter and leave the United States; and
(ii) Detection of and enforcement activities taken as a result of criminal activity, including the trafficking of human beings, in a CMV or by any occupant, including the operator of the CMV; and
(2) For documented enforcement of State traffic laws and regulations designed to promote the safe operation of CMVs, including documented enforcement of such laws and regulations relating to non-CMVs when necessary to promote the safe operation of CMVs, if—
(i) The number of motor carrier safety activities, including roadside safety inspections is maintained at a level at least equal to the average level of such activities conducted in the State in fiscal years 2004 and 2005; and
(ii) The State does not use more than 10 percent of the MCSAP Basic funds for enforcement activities relating to non-CMVs necessary to promote the safe operation of CMVs, unless the Administrator determines that a higher percentage will result in significant increases in CMV safety.
The types of activities eligible for reimbursement under the High Priority Program include:
(a) Increasing public awareness and education about CMV safety;
(b) Targeting unsafe driving of CMVs and non-CMVs in areas identified as high risk crash corridors;
(c) Improving the safe and secure movement of hazardous materials;
(d) Improving safe transportation of goods and persons in foreign commerce;
(e) Demonstrating new technologies to improve CMV safety;
(f) Supporting participation in performance and registration information systems management (PRISM) under 49 U.S.C. 31106(b)—
(1) For Non-Lead State Agencies; or
(2) For Lead State Agencies—
(i) Before October 1, 2020, to achieve compliance with the requirements of participation; and
(ii) Beginning on October 1, 2020, or once compliance is achieved, whichever is sooner, for special initiatives or projects that exceed routine operations required for participation;
(g) Conducting safety data improvement projects—
(1) That complete or exceed the requirements under 49 U.S.C. 31102(c)(2)(P) for Non-Lead State Agencies; or
(2) That exceed the requirements under 49 U.S.C. 31102(c)(2)(P) for Lead State Agencies;
(h) Improving CMV safety and compliance with CMV safety regulations; and
(i) Implementing and maintaining the Innovative Technology Deployment of CMV information systems and networks in accordance with 49 U.S.C. 31102(l)(3).
(a) FMCSA shall establish criteria for eligible activities to be funded and publish those criteria in a notice of funding availability before the MCSAP and High Priority Program application periods.
(b) All reimbursable items must be necessary, reasonable, allocable and allowable under this part and 2 CFR part 200. The eligibility of specific items is subject to review by FMCSA. The following types of expenses are eligible for reimbursement:
(1) Personnel expenses, including recruitment and screening, training, salaries and fringe benefits, and supervision.
(2) Equipment and travel expenses, including per diem, directly related to the enforcement of safety regulations, including vehicles, uniforms, communications equipment, special inspection equipment, vehicle maintenance, fuel, and oil.
(3) Indirect expenses as allowed by 2 CFR part 200.
(4) Expenses related to data acquisition, storage, and analysis that are specifically identifiable as program-related to develop a data base to coordinate resources and improve efficiency, including operation and maintenance costs related to innovative technology deployment.
(5) Clerical and administrative expenses, to the extent necessary and directly attributable to the MCSAP.
(6) Expenses related to the improvement of real property (
After deducting administrative expenses authorized in 49 U.S.C. 31104(c), the MCSAP funds are allocated among States with approved CVSPs in two ways:
(a) As Basic Program Funds in accordance with § 350.323 of this part,
(b) As Incentive Funds in accordance with § 350.327 of this part.
(a) First, the funds are distributed proportionally to the States using the following four, equally weighted (25 percent), factors.
(1) 1997 Road miles (all highways) as defined by the FHWA.
(2) All vehicle miles traveled (VMT) as defined by the FHWA.
(3) Population—annual census estimates as issued by the U.S. Census Bureau.
(4) Special fuel consumption (net after reciprocity adjustment) as defined by the FHWA.
(b) Next, the FMCSA will average the funding awarded to a State, or other equitable amounts, in fiscal years 2013, 2014, and 2015 for—
(1) Border enforcement grants under 49 U.S.C. 31107; and
(2) New entrant audit grants under 49 U.S.C. 31144(g)(5).
(c) FMCSA will add the amount in paragraph (a) of this section to the amount in paragraph (b) of this section to calculate the total amount of MCSAP Basic funding.
(d) Subject to the availability of funding and notwithstanding fluctuations in the data elements used by FMCSA, the initial amounts resulting from the calculation in paragraph (c) of this section shall be adjusted to ensure that, for each State, the amount shall not be less than 97 percent of the average amount of funding received or other equitable amounts in fiscal years 2013, 2014, and 2015 for—
(1) MCSAP funds under 49 U.S.C. 31102;
(2) Border enforcement grants under 49 U.S.C. 31107; and
(3) New entrant audit grants under 49 U.S.C. 31144(g)(5).
(e) Distribution of Basic Program Funds for Puerto Rico and the U.S. territories is subject to allocation as follows:
(1) U.S. territories receive a fixed amount of $350,000;
(2) Puerto Rico receives a maximum allocation of 4.944 percent or a minimum allocation of 0.44 percent or $350,000, whichever is greater.
The revisions read as follows:
(a) States must submit a copy of new or amended State laws or regulations on CMV safety immediately after the enactment or issuance.
(b) A State must conduct a review of its laws and regulations for compatibility and report the results of that review in the CVSP in accordance with § 350.213(l), along with a certification of compliance, no later than August 1 of each year. The report must include the following two items:
(a) FMCSA may initiate a proceeding to withdraw Plan approval or withhold MCSAP funds in accordance with 49 CFR 320.215 in the following situations:
(1) When a State that currently has compatible CMV safety laws and regulations pertaining to interstate commerce (
(2) When a State fails to adopt a new FMCSR or HMR or an amendment to an FMCSR or HMR within 3 years of its effective date; or
(3) Upon a finding by FMCSA, based upon its own initiative or upon a petition of any person, including any State, that a State law, regulation or enforcement practice pertaining to CMV safety, in either interstate or intrastate commerce, is incompatible with the FMCSRs or HMRs.
(b) Any decision regarding the compatibility of State law or regulation with the HMRs that requires an interpretation will be referred to the Pipeline and Hazardous Materials Safety Administration of the DOT for such interpretation before proceeding under § 350.215.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Correcting amendment.
The Federal Motor Carrier Safety Administration corrects an inadvertent error in the October 4, 2016 final rule “General Technical, Organizational, Conforming, and Correcting Amendments to the Federal Motor Carrier Safety Regulations.” Due to an error, the rule unintentionally did not include the word “and” at the end of the next to last condition for a farm vehicle driver to take advantage of the farm vehicle driver exceptions to commercial driver's license standards and alcohol and drug testing requirements. Today's correction makes it clear that all four conditions in each farm vehicle driver exception must be met in order for the exception to be used.
Mr. David Miller, Federal Motor Carrier Safety Administration, Regulatory Development Division, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, by telephone at (202) 366-5370. Office hours are from 9:00 a.m. to 5:00 p.m. e.t., Monday through Friday, except Federal holidays.
The Federal Motor Carrier Safety Administration published a document in the
Administrative practice and procedure, Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor carriers, Penalties, Safety, Transportation.
Administrative practice and procedure, Alcohol abuse, Drug abuse, Highway safety, Motor carriers.
Accordingly, 49 CFR part 382 is corrected by making the following correcting amendments:
49 U.S.C. 31133, 31136, 31301
(d) * * *
(3) * * *
(i) * * *
(C) Not used in the operations of a for-hire motor carrier, except for an exempt motor carrier as defined in § 390.5 of this subchapter; and
49 U.S.C. 521, 31136, 31301
(d) * * *
(1) * * *
(iii) Not used in the operations of a for-hire motor carrier, except for an exempt motor carrier as defined in § 390.5 of this subchapter; and
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of open meetings and webinars.
Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) has granted the Circulator Pumps Working Group an extension to allow for more time for discussion on economic analysis and negotiations on standard levels. The Department of Energy (DOE) is announcing additional open meetings have been scheduled for the Circulator Pumps Working Group.
See
See
Mr. Joe Hagerman, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-4549. Email:
Ms. Johanna Jochum, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-6307. Email:
DOE published a notice of public meeting in the
This notice announces the next series of meetings for this working group. DOE will host public meetings and webinars on the below dates.
Members of the public are welcome to observe the business of the meeting and, if time allows, may make oral statements during the specified period for public comment. To attend the meeting and/or to make oral statements regarding any of the items on the agenda, email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E airspace extending upward from 700 feet above the surface at Healy River Airport, Healy, AK, to support the development of Instrument Flight Rules (IFR) operations under standard instrument approach and departure procedures at the airport, and for the safety and management of controlled airspace within the National Airspace System.
Comments must be received on or before November 28, 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-2016-9159; Airspace Docket No. 13-
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.
Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Healy River Airport, Healy, AK.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-9159/Airspace Docket No. 13-AAL-7.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. 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 the
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 by establishing Class E airspace extending upward from 700 feet above the surface at Healy River Airport, Healy, AK. This airspace is necessary to support the development of IFR operations in standard instrument approach and departure procedures at the airport. Class E airspace would be established within a 3.5-mile radius of the Healy River Airport, with segments extending from the 3.5-mile radius to 11.5 miles northwest of the airport, and 10.5 miles south of the airport.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the
This proposal will criteria of the Regulatory Flexibility Act be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal
49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
U.S. Customs and Border Protection; Department of the Treasury.
Notice of Proposed Rulemaking.
This document proposes to amend the U.S. Customs and Border Protection (CBP) regulations to reflect that official notice of liquidation, suspension of liquidation, and extension of liquidation will be posted electronically on the CBP Web site. This document also proposes regulatory revisions to reflect that official notice of liquidation will no longer be posted at the customhouses or stations and that official notices of suspension of liquidation and extension of liquidation will no longer be mailed. Additionally, this document proposes to make certain technical corrections to the CBP regulations.
Comments must be received on or before November 14, 2016.
You may submit comments identified by
•
•
Virginia McPherson, ACE Business Office, Office of Trade, 571-468-5181, or
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule. U.S. Customs and Border Protection (CBP) also invites comments that relate to the economic, environmental, or federalism effects that might result from this regulatory change. Comments that will provide the most assistance to CBP will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information or authority that support such recommended change.
Section 500 of the Tariff Act of 1930, as amended (19 U.S.C. 1500), provides CBP with the authority, under rules and regulations prescribed by the Secretary, to, among other things, give or transmit notice of liquidation pursuant to an electronic data interchange system.
CBP defines “liquidation” in section 159.1 of title 19 of the Code of Federal Regulations (CFR) as the final computation or ascertainment of duties on entries for consumption or drawback entries.
Generally, the bulletin notice of liquidation is prepared on Thursday afternoons and is placed in the public area at the customhouse or station for display so that the public may view it beginning each Friday morning. Each port has a sign posted in a conspicuous place, in accordance with 19 CFR 159.9(b), directing the public to the bulletin notice.
Courtesy notices of liquidation are sent via a CBP-authorized electronic data interchange system or physically mailed on CBP Form 4333-A.
Individuals interested in perusing the bulletin notices must physically go to the customhouse. In most instances, CBP liquidates entries without changing the duties, fees or charges asserted by the importer; therefore there is generally no need to know the exact date of liquidation for most entries. However, as stated above, the exact date of liquidation is important if an importer wishes to timely file a protest challenging any of the decisions about an entry that are subsumed into the liquidation and enumerated in 19 U.S.C. 1514(a). CBP estimates that protesters or their representatives take 2,500 trips to U.S. customhouses or stations each year to physically view the official bulletin notice. In addition, physically posting the bulletin notice of liquidation, repeated at each customhouse every week, is laborious and time-consuming.
In this document, CBP is proposing to post official notice of liquidation for all entries, including entries filed in paper form, as well as official notices regarding the extension or suspension of liquidation, at
The electronic bulletin notices will be searchable on the CBP Web site by using two or more of the following data elements:
The liquidation information posted electronically will be updated daily. When liquidation notices are posted on
Electronic filers, using their ACE Portal Account, would be able to access historical liquidation information that is no longer available on the CBP Web site, run queries for information on recent liquidations, extensions, and suspensions, run targeted reports to conduct in-house audits, identify systemic errors, and provide insight into entries under review by CBP, all in support of improved compliance with trade laws. Obtaining an ACE Portal Account is free, and registration information is available at:
In addition to posting the official notice of liquidation on
This section of the document explains the proposed amendments to various parts of title 19 of the Code of Federal Regulations (19 CFR) to implement the above-described changes regarding the electronic posting of notice. Accordingly, the following sections are proposed to be revised as follows:
CBP is proposing to amend section 159.9 throughout, with one exception in paragraph (c)(2)(iii), discussed below, to provide for the proposed changes discussed above by replacing references to the physical posting or lodging bulletin notice of liquidation, CBP Form 4333, with references to electronic notice provided on
CBP is proposing to add a new paragraph (c)(2)(iii) for liquidation notices posted on
Because bulletin notices of liquidation will not be physically posted at the customhouse or the station, CBP is proposing to amend section 159.10 by removing the words “posting or lodging of” in paragraph (b), removing the words “on CBP Form 4333 posted or lodged” in paragraph (c)(1), and by removing the words “on a bulletin notice of liquidation, CBP Form 4333,” in paragraph (c)(3).
Also, because bulletin notices of liquidation will not be physically posted at the customhouse or the station, we propose to amend section 159.11 at paragraph (a) by replacing the words “on the bulletin notice of liquidation, CBP Form 4333,” with “electronically”.
Additionally, CBP proposes to amend section 159.12 at paragraphs (b) and (c) to state that official notice of extension and suspension, and the reasons therefor, will be posted on
CBP is also proposing to make certain technical corrections in this document. These proposed amendments update the regulatory language to reflect statutory changes.
Sections 159.11(a) and 159.12(f) refer to the timing of liquidation. In addition to the changes made to these sections regarding the electronic posting of notice, these sections are also being modified to reflect updated language that aligns with 19 U.S.C. 1504, which was amended in 2004 by the Miscellaneous Trade and Technical Corrections Act (Pub. L. 108-429, 118 Stat. 683, December 3, 2004) to provide that entries are deemed liquidated based on the rate of duty, value, quantity, and amount of duties asserted by the importer of record regardless of when asserted. The current regulations state that an entry may only be deemed liquidated based on the rate, duty, value, quantity, and amount of duties asserted by the importer
Section 173.4a provides for the correction of clerical errors prior to liquidation. The section implements section 520 of the Tariff Act of 1930, as amended (19 U.S.C. 1520). Section 1635 of the Pension Protection Act of 2006 (Pub. L. 109-280, 170 Stat. 780, August 17, 2006) modified 19 U.S.C. 1520. Prior to this amendment, 19 U.S.C. 1520 authorized refunds prior to liquidation of an entry or reconciliation, whenever it is ascertained that excess duties, fees, or exactions have been deposited or paid by reason of clerical error. Under the 2006 amendment, the clause, “by reason of clerical error,” was deleted from the statute. This document proposes to revise the section heading for § 173.4a and updates the regulatory language to reflect this amendment.
Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this regulation.
This section examines the impact of this rule on small entities per the requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Most goods imported into the United States are subject to duty assessments, which CBP conducts during a process known as liquidation. During this liquidation process, CBP performs a final computation of duties (not including vessel repair duties) on the entry covering the imported merchandise and then closes out the entry. In accordance with current regulations, CBP officially notifies importers,
Some liquidations may be extended or suspended. If liquidation is extended or suspended, CBP officially notifies the importer and his/her surety by mail using CBP Form 4333-A, as appropriately modified.
In an effort to modernize the liquidation, reliquidation, extension, and suspension notification processes, CBP, through this rulemaking, proposes to discontinue physically posting official bulletin notices of liquidation and reliquidation at U.S. port of entry customhouses and stations. Instead, CBP would post these official notices in a readily-located, conspicuous place on the CBP Web site:
For most importers (and their sureties), this rule would simply change the way in which they can access official notices of liquidation, reliquidation, extension, and suspension. Instead of posting weekly official bulletin notices of liquidation and reliquidation at each U.S. customhouse and station and mailing official notices of extension and suspension, CBP would publish these notices on the CBP Web site once this rule is in effect. CBP would also discontinue mailing all paper courtesy notices of liquidation and reliquidation with this rule. Because the vast majority of importers (and all their sureties) already rely on the electronic courtesy notices of liquidation, reliquidation, extension, and suspension that CBP provides, this rule's transition to electronic official notice publications would presumably only affect a small portion of importers. Specifically, this transition to electronic notice publications would only affect those importers who currently rely on official bulletin notices physically posted at U.S. customhouses and stations and those importers who receive and rely on paper courtesy notifications of liquidation and reliquidation and paper official notices of extension and suspension due to their paper entry filings.
Using historical data, CBP estimates that importers took an average of 2,500 trips to U.S. customhouses or stations each year for the single purpose of viewing official bulletin notices because the official bulletin notice's posting date was significant to a protest that importer planned to file.
This rule's transition to fully electronic notices would require the estimated 29,100 importers who currently rely on official bulletin notices physically posted at U.S. customhouses and stations and those who rely on paper notices of liquidation, reliquidation, extension, and suspension to visit the CBP Web site to determine entry liquidations, reliquidations, extensions, and suspensions.
Source of median wage rate: U.S. Bureau of Labor Statistics. Occupational Employment Statistics, “May 2015 National Occupational Employment and Wage Estimates, United States- Median Hourly Wage by Occupation Code: 43-5011.” Updated March 30, 2016. Available at
The total compensation to wages and salaries ratio is equal to the calculated average of the 2015 quarterly estimates (shown under Mar., June, Sep., Dec.) of the total compensation cost per hour worked for Office and Administrative Support occupations ($24.9475) divided by the calculated average of the 2015 quarterly estimates (shown under Mar., June, Sep., Dec.) of wages and salaries cost per hour worked for the same occupation category ($16.8575). Source of total compensation to wages and salaries ratio data: U.S. Bureau of Labor Statistics. Employer Costs for Employee Compensation.
Source of suggested growth rate: U.S. Department of Transportation, Office of Transportation Policy.
Along with the minor Web site access cost imposed by this rule, this rule would provide benefits to importers who currently rely on official bulletin notices physically posted at U.S. customhouses and stations. This rule's electronic publication of official bulletin notices of liquidation and reliquidation would allow these importers to avoid visiting U.S. customhouses and stations for formal entry liquidation and reliquidation information, which typically occur 2,500 times a year. For each trip to a U.S. customhouse or station avoided, importers would save an estimated 45 minutes (0.75 hours), which would result in a time cost saving of $22.57 using the average hourly wage for importers of $30.09.
The electronic bulletin notices introduced with this rule would also provide benefits of eased access, relatively quicker notification, and extended viewing to importers. In particular, this electronic transition would allow importers to easily view and query a complete, consolidated list of U.S. entry liquidations, reliquidations, extensions, and suspensions, thus facilitating the process by which these individuals obtain such entry information. For importers who typically rely on paper courtesy notices for liquidation and reliquidation information, which they receive by mail after the official notice's posting, this electronic posting would provide the added benefit of more timely notice and additional protest time. Importers who receive and rely on paper courtesy notices would also benefit from this rule's consolidated electronic notice posting. This change would allow importers and their agents to view liquidation, reliquidation, extension, and suspension notices
Although CBP believes that this rule would affect a substantial number of small entities, specifically importers, CBP does not believe that the (negative) economic impact of this rule on small entities would be significant. Accordingly, CBP certifies that this regulation would not have a significant economic impact on a substantial number of small entities. CBP welcomes any comments on this conclusion.
As there is no collection of information proposed in this document, the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) are inapplicable.
This document is being issued in accordance with § 0.1(a)(1) of the CBP Regulations (19 CFR 0.1(a)(1)) pertaining to the authority of the Secretary of the Treasury (or his/her delegate) to approve regulations related to certain customs revenue functions.
Antidumping, Countervailing duties, Customs duties and inspection, Foreign currencies.
Administrative practice and procedure, Customs duties and inspection.
For the reasons given above, parts 159 and 173 of title 19 of the Code of Federal Regulations (19 CFR parts 159 and 173) are proposed to be amended as set forth below:
19 U.S.C. 66, 1500, 1504, 1624.
(a)
(b)
(c)
(2)
(ii) For liquidation notices posted or lodged in the customhouse, pursuant to section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514) and part 174 of this chapter, a protest of a decision relating to an entry made before December 18, 2004, must be filed within 90 days from the date of liquidation of an entry by operation of law or within 90 days from the date the bulletin notice thereof is posted or lodged in the customhouse, or, in the case of a protest of a decision relating to an entry made on or after December 18, 2004, within 180 days from the date of liquidation of an entry by operation of law.
(iii) For liquidation notices posted on
(d)
(a)
(b)
(c)
(d) * * *
(1) * * *
(2)
(f)
19 U.S.C. 66, 1501, 1520, 1624.
Pursuant to section 520(a)(4), Tariff Act of 1930, as amended (19 U.S.C. 1520(a)(4)), whenever an importer of record declares or it is ascertained that excess duties, fees, charges, or exactions have been deposited or paid, the port director may, prior to liquidation of an entry or reconciliation, take appropriate action to refund the deposit or payment of excess duties, fees, charges, or exactions.
Internal Revenue Service (IRS), Treasury.
Notice of a public hearing on notice of proposed rulemaking.
This document provides a notice of a public hearing on proposed IRS regulations that are affecting the repeal of the
The public hearing is being held on Wednesday, November 9, 2016, at 10 a.m. The IRS must receive outlines of the topics to be discussed at the public hearing by Wednesday, October 26, 2016.
The public hearing is being held in the IRS Auditorium, Internal Revenue Service Building, 1111 Constitution Avenue NW., Washington, DC 20224. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building.
Send Submissions to CC:PA:LPD:PR (REG-126452-15), Room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday to CC:PA:LPD:PR (REG-126452-15), Couriers Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224 or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Austin M. Diamond-Jones (202) 317-5363; concerning submissions of comments, the hearing and/or to be placed on the building access list to attend the hearing Regina Johnson at (202) 317-6901 (not toll-free numbers).
The subject of the public hearing is the notice of proposed rulemaking (REG-126452-15) that was published in the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing that submit written comments by October 26, 2016, must submit an outline of the topics to be addressed and the amount of time to be devoted to each topic by Wednesday, October 26, 2016.
A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available, free of charge, at the hearing or by contacting the Publications and Regulations Branch at (202) 317-6901 (not a toll-free number).
Because of access restrictions, the IRS will not admit visitors beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
Internal Revenue Service (IRS), Treasury.
Notice of Proposed Rulemaking by cross-reference to temporary regulations.
In the Rules and Regulations section of this issue of the
Written or electronic comments and requests for a public hearing must be received by January 12, 2017.
Send submissions to CC:PA:LPD:PR (REG-150992-13), Room 5203, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-150992-13), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Daniel Cassano at (202) 317-7011; concerning comments or a request for a public hearing, Oluwafunmilayo Taylor (202) 317-6901 (not toll-free numbers).
Final and temporary regulations in the Rules and Regulations section of this issue of the
Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The Department of the Treasury and the IRS request comments concerning the extension of the due date by which a taxpayer may make a section 165(i) election, as well as the time and manner in which a taxpayer may revoke a section 165(i) election. All comments will be available for public inspection and copying.
A public hearing will be scheduled if requested in writing by any person who timely submits comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the
The principal authors of these regulations are Daniel Cassano and Christopher Wrobel of the Office of the Associate Chief Counsel (Income Tax & Accounting). However, other personnel from the Department of the Treasury and the IRS participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, the Internal Revenue Service proposes to amend 26 CFR part 1 as follows:
26 U.S.C. 7805 * * *
The revisions and additions read as follows:
(a) through (i) [Reserved]. [The text of proposed § 1.165-11(a) through (i) is the same as the text of § 1.165-11T(a) through (i) published elsewhere in this issue of the
National Park Service, Interior.
Proposed rule.
The National Park Service (NPS) proposes to revise its general rule governing the sale and distribution of printed matter to include the free distribution of message-bearing items that do not meet the NPS regulatory definition of “printed matter.” This change would give visitors an alternative channel of communication while protecting the resources and values of the National Park System.
Comments must be received by December 13, 2016.
You may submit comments, identified by the Regulation Identifier Number (RIN) 1024-AE32, by any of the following methods:
•
•
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. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Please make your comments as specific as possible and explain the basis for them.
Lee Dickinson, Special Park Use Program Manager, at (202) 513-7092 or
Currently consisting of over 400 units in 50 states, the District of Columbia and multiple territories, the National Park System covers more than 84 million acres. These units are located in a wide range of environments as diverse as the United States itself. The size of these units also varies tremendously, ranging from Wrangell-St. Elias National Park and National Preserve, Alaska, at 13.2 million acres, to Thaddeus Kosciuszko National Memorial, Pennsylvania, at 0.02 acres.
About one-third of the units—such as Great Smoky Mountains National Park, Tennessee; Grand Canyon National Park, Arizona; Everglades National Park, Florida; and Hawaii Volcanoes National Parks, Hawaii—preserve nature's many and varied gifts to the nation. The other two-thirds of the units recognize benchmarks of human history in America. These units protect elements of great native cultures, far older than European exploration and settlement; present battle sites from the Revolutionary and Civil Wars—including the key surrender fields of both great conflicts; embrace Thomas Edison's New Jersey laboratories where he and his staff led a technological revolution more dramatic even than the coming of the computer age; and more. These historical park units reflect the development of both art and industry in America, along with landmarks of social and political change.
As a broader understanding of history took hold, the National Park System eventually grew to include the historic homes of civil rights, political, and corporate leaders, and the lands of the poor, struggling to build lives for themselves on a Nebraska homestead claim or in an urban community. It now embraces the birthplace, church, and grave of Dr. Martin Luther King at Martin Luther King, Jr. National Historical Site, Georgia; the birth of jazz at New Orleans Jazz National Historical Park, Louisiana; the flowering of a literary giant at the Eugene O'Neill National Historical Site, California; and the artistic grace of a great sculptor's studios at Saint-Gaudens National Historical Site, New Hampshire. Because of the lessons they help us remember, the National Park System also includes the Japanese American World War II internment camp in the desert at Manzanar National Historical Site, California, as well as Andersonville National Historical Site, Georgia, one of the very bleakest of the Civil War prison sites.
The National Park System is habitat for 247 threatened or endangered species, has more than 167 million items in museum collections, has 75,000 archaeological sites, and 27,000 historic and prehistoric structures. The National Park System also has an extensive physical infrastructure, which includes thousands of buildings, tens of thousands of miles of trails and roads, and almost 30,000 housing units, campgrounds, and picnic areas as well as 3,000 water and waste water treatment systems.
Over 307 million visitors visited the National Park System in 2015, where visitors find not only visual, educational, and recreational experiences but also inspirational, contemplative, and spiritual experiences. For Native Americans, certain national parks are also considered sacred religious sites, where the National Park Service (NPS) asks visitors to respect these long-held beliefs, such as by voluntarily not walking under a natural bridge.
First Amendment activities in units of the national park system are governed by longstanding but ever-evolving First Amendment jurisprudence; by the statutes and regulations governing the national park system as a whole; and by park-specific statutes and regulations.
Title 36 CFR 2.52 currently allows the sale or distribution only of printed matter and only in areas of a park designated by the superintendent. The regulation defines “printed matter” as “message-bearing textual printed material such as books, pamphlets, magazines, and leaflets, provided that it is not solely commercial advertising.”
The NPS recognizes, however, that items other than “printed matter” may also contain or present speech, either literal or symbolic, that is not solely commercial and whose expression may be protected by the First Amendment. Accordingly, the NPS now proposes to allow the free distribution of message-bearing items other than printed matter in areas of a park designated by the superintendent, subject to compliance with the regulations at 36 CFR 2.51, 2.52, and 5.3. These items include readable electronic media like CDs, DVDs, and flash drives; articles of clothing like hats and accessories like buttons and pins; key chains; and bumper stickers.
Under the proposed rule, message-bearing items other than printed matter may not be sold within a park unit; they may only be distributed free of charge. This restriction is necessary to prevent the proliferation of unregulated commercial activity that would be inconsistent with park resources and values, that would impinge upon and degrade park scenery, and that would disrupt the atmosphere of peace and tranquility that is an important part of the visitor experience in many park units.
The proposed revision to § 2.52 to allow the free distribution of other message-bearing items, is consistent with the NPS's National Capital Region (NCR) regulation, 36 CFR 7.96(k), that allows the free distribution of other message-bearing items. As discussed in the preambles to the proposed and final rules for the NCR regulation, 59 FR 25855 (1994) and 60 FR 17639 (1995), the NPS promulgated § 7.96 to resolve
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million or more.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This rule does not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required.
Under the criteria in section 1 of Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This proposed rule only affects use of federally-administered lands and waters. It has no outside effects on other areas. A Federalism summary impact statement is not required.
This rule complies with the requirements of Executive Order 12988. This rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's tribal consultation policy and have determined that tribal consultation is not required because the rule will have no substantial direct effect on federally recognized Indian tribes.
This rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. OMB has approved the information collection requirements associated with NPS Special Park Use Permits and has assigned OMB Control Number 1024-0026 (expires 10/31/16). An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion. We have determined that the rule is categorically excluded under 516 DM 12.5(A)(10) as it is a modification of existing NPS regulations that does not increase public use to the extent of compromising the nature and character of the area or causing physical damage to it. Further, the rule will not result in the introduction of incompatible uses which might compromise the nature and characteristics of the area or cause physical damage to it. Finally, the rule will not conflict with adjacent ownerships or lands uses, or cause a nuisance to adjacent owners or occupants.
We have also determined that the rule does not involve any of the
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.
We are required by Executive Orders 12866 (section 1(b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
Environmental protection, National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 2 as set forth below:
54 U.S.C. 100101, 100751, 320102.
The revisions and additions to read as follows:
(a)
(b)
Environmental Protection Agency (EPA).
Proposed rule.
This document proposes to establish tolerances for residues of tebufenozide in or on multiple commodities which are identified and discussed later in this document and amend the existing tolerance for almond, hulls under the Federal Food, Drug, and Cosmetic Act (FFDCA).
Comments must be received on or before December 13, 2016.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2008-0824, by one of the following methods:
•
•
•
Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
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EPA on its own initiative, under FFDCA section 408(e), 21 U.S.C. 346a(e), is proposing to establish tolerances for residues of the insect growth regulator tebufenozide, in or on bushberry subgroup 13-07B at 3.0 part per million (ppm); caneberry subgroup 13-07A at 3.0 ppm; fruit, citrus, group 10-10 at 2.0 ppm; fruit, pome group 11-10 at 1.0 ppm; nut, tree, group 14-12 at 0.1 ppm; sugarcane, cane at 1.0 ppm; sugarcane, molasses at 3.0 ppm; vegetable, fruiting, group 8-10 at 1.0 ppm. The Agency is also proposing to amend the existing tolerance for almond, hulls to raise the tolerance from 25 ppm to 30 ppm. Further, upon the establishment of these tolerances, the Agency is proposing to delete the existing tolerances for apple; berry, group 13; fruit, citrus, group 10; fruit, pome; nut, tree, group 14; pistachio; vegetable, fruiting, group 8; and walnut since they will be superseded by the newly established tolerances.
The EPA is proposing to establish tolerances on sugarcane, cane; and sugarcane, molasses since permanent tolerances established in a September 22, 1999 Final Rule in the
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue....”
Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure, consistent with FFDCA section 408(b)(2), for tolerances for residues of tebufenozide. EPA's assessment of exposures and risks associated with establishing the tolerance follows:
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
The toxic effects of tebufenozide in mammalian species arise primarily from methemoglobinemia associated with denaturation of hemoglobin and concomitant Heinz body formation in erythrocytes, resulting in a rapid turnover of red blood cells with increased hematopoiesis, splenic discoloration, and other spleen effects. This type of toxicity is often typical of compounds with a hydrazine moiety, and is consistent with the structure of tebufenozide. The hematologic effects have been observed in all mammalian species tested to date (rat, mouse, dog, and rabbit), with no indication of any significant differences between sexes. There is no evidence that tebufenozide is neurotoxic, or that it causes reproductive or developmental toxicity. There is no indication of increased susceptibility of fetuses or pups (effects occur above maternally toxic doses). There was no toxicity noted in a 21-day dermal toxicity study and no immunotoxicity was observed in immunotoxicity studies in both rats and mice. Tebufenozide is classified as “not likely to be carcinogenic to humans” based on lack of evidence of carcinogenicity in rats and mice and no evidence of mutagenicity.
Specific information on the studies received and the nature of the adverse effects caused by tebufenozide as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicology study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for tebufenozide used for
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No such effects were identified in the toxicological studies for tebufenozide; therefore, a quantitative acute dietary exposure assessment is unnecessary.
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Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:
• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.
• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.
• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.
The Agency estimated the PCT for existing uses as follows: blueberries: 10%; cabbage, caneberries, cauliflower, celery, lettuce, parsley, pecans, peppers, tomatoes and walnuts: each at 5%; almonds, broccoli, pistachios, spinach, and turnip roots: each at 2.5%; apples, citrus, cotton, grapes and pears: each at 1%.
In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6 to 7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.
The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which tebufenozide may be applied in a particular area.
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The residues of concern in drinking water was recently updated to include parent and metabolite RH-112651 for ground water and parent plus 3 metabolites, RH-112651, RH-112703, and RH-96595 for surface water. The Total Toxic Residues (TTR) approach was used, assuming presence of parent tebufenozide plus all three of its major metabolites, RH-112651, RH-112703, and RH-9659 in both ground and surface water in its assessment of tebufenozide residues in drinking water. Based on the Surface Water Concentration Calculator (SWCC) with the Provisional Cranberry Model and Pesticide Root Zone Model for Groundwater (PRZM-GW) model, the estimated drinking water concentrations (EDWCs) of tebufenozide for chronic exposures are estimated to be 105.8 parts per billion (ppb) for surface water and 107.2 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 107 ppb was used to assess the contribution to drinking water.
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Tebufenozide is currently registered for the following uses that could result in residential exposures: Ornamentals in outdoor residential areas. EPA assessed residential exposure using the following assumptions: For adult handlers, it is assumed that residential use will result in short-term (1 to 30 days) duration for dermal and inhalation exposures. However, since a dermal hazard was not identified, only the residential inhalation exposure from applications to garden/trees via backpack sprayer was assessed. Although an incidental oral endpoint was identified, incidental oral exposure is not expected based on the on application to ornamentals in outdoor residential areas.
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
EPA's Office of Pesticide Programs (OPP) has previously developed guidance documents for establishing common mechanism groups (CMGs) (Guidance for Identifying Pesticide Chemicals and Other Substances that have a Common Mechanism of Toxicity (1999)) and conducting cumulative risk assessments (CRAs) (Guidance on Cumulative Risk Assessment of Pesticide Chemicals that have a Common Mechanism of Toxicity (2002)). In 2016, EPA's Office of Pesticide Programs released another guidance document entitled Pesticide Cumulative Risk Assessment: Framework for Screening Analysis. All three of these documents can be found at
The agency has utilized this framework for tebufenozide and determined that halofenozide, tebufenozide, and methoxyfenozide (diacylhydrazines) form a candidate CMG. This group of pesticides is
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i. The toxicity database for tebufenozide is complete.
ii. There is no indication that tebufenozide is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. There is no evidence that tebufenozide results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary exposure assessment used tolerance-level residues and was only partially refined by use of PCT information. EPA does not expect post-application exposures for infants and children. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to tebufenozide in drinking water, which includes the use of the TTR approach. These assessments will not underestimate the exposure and risks posed by tebufenozide.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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Tebufenozide is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to tebufenozide. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in an aggregate MOE of 550 for adults. Because EPA's level of concern for tebufenozide is a MOE of 100 or below, this MOE is not of concern.
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An intermediate-term adverse effect was identified; however, tebufenozide is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for tebufenozide.
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Adequate enforcement methodology (high performance liquid chromatography using ultraviolet detection (HPLC-UV)) is available to enforce the tolerance expression.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize US tolerances with international standards whenever possible, consistent with US food safety standards and agricultural practices. EPA considers the international
The Codex has established MRLs for tebufenozide in or on sugarcane; fruit, citrus, group 10-10; fruit, pome, group 11-10; and almond, hulls. The proposed US tolerances would be harmonized with the Codex MRLs.
In this proposed rule, EPA is proposing to reduce the tolerance in or on fruit, pome, group 11-10 from 1.5 to 1.0 ppm. The Agency is proposing this reduction in order to harmonize with the Codex MRL. The reduction is appropriate based on available data and residue levels resulting from registered use patterns.
In accordance with the World Trade Organization's (WTO) Sanitary and Phytosanitary Measures (SPS) Agreement, EPA will notify the WTO of its intent to revise this tolerance. In addition, the SPS Agreement requires that Members provide a “reasonable interval” between the publication of a regulation subject to the Agreement and its entry into force in order to allow time for producers in exporting Member countries to adapt to the new requirement. Although the WTO has determined that six months would be a reasonable interval, it has also recognized that some circumstances may warrant implementation of a regulation without the de facto six month implementation delay,
EPA is proposing not to provide a reasonable interval between the publication of this rule and the date it becomes effective because it believes that exporting countries do not need time to adjust to the new requirement. With very few exceptions, all of the global maximum residue levels for tebufenozide on pome fruits are already at or below EPA's proposed level of 1.0 ppm. Although Mexico allows 1.5 ppm on crabapple, pear, and quince, Mexico defaults to the US tolerance levels. Similarly, although Hong Kong has established a maximum residue level of 1.5 ppm for pear and Asian pear, it has not exported those fruits to the United States in the past 2 years. As a result, EPA believes that a reasonable interval between the publication of this rule and the effective date of these tolerances is not necessary and proposes to make the reduction effective upon publication of the final rule.
This proposed reduction in tolerance is not discriminatory; the same food safety standard contained in the FFDCA applies equally to domestically produced and imported foods.
EPA proposes to establish tolerances for residues of tebufenozide in bushberry subgroup 13-07B at 3.0 ppm; caneberry subgroup 13-07A at 3.0 ppm; fruit, citrus, group 10-10 at 2.0 ppm; fruit, pome group 11-10 at 1.0 ppm; nut, tree, group 14-12 at 0.1 ppm; sugarcane, cane at 1.0 ppm; sugarcane, molasses at 3.0 ppm; and vegetable, fruiting, group 8-10 at 1.0 ppm. The Agency is also proposing to amend the existing tolerance for almond, hulls to raise the tolerance from 25 ppm to 30 ppm. Further, upon the establishment of these tolerances, the Agency is proposing to delete the existing tolerances for apple; berry, group 13; fruit, citrus, group 10; fruit, pome; nut, tree, group 14; pistachio; vegetable, fruiting, group 8; and walnut since they will be superseded by the newly established tolerances.
Appellate Body Report,
In this proposed rule in Unit II, EPA is proposing to establish tolerances under FFDCA section 408(e), and also modify and revoke specific tolerances established under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions (
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, it is proposed that 40 CFR chapter I be amended as follows:
21 U.S.C. 321(q), 346a and 371.
The revisions and additions read as follows:
(a) * * *
(1) * * *
Bureau of Land Management, Interior.
Notice of proposed supplementary rules.
The Bureau of Land Management (BLM) in Colorado is proposing supplementary rules for 2,160 acres of public lands addressed in the Cache Creek Placer Area Management Plan, approved on February 23, 2016. These proposed supplementary rules would apply to public lands administered by the BLM Royal Gorge Field Office in Chaffee County, Colorado. The proposed rules would implement decisions found in the Cache Creek Placer Area Management Plan relating to the collection of mineral materials within the Cache Creek parcel.
Please send comments to the address below by December 13, 2016. Comments received or postmarked after this date may not be considered in the development of the final supplementary rules.
You may send comments by the following methods: Mail or hand deliver to Kalem Lenard, Outdoor Recreation Planner, BLM Royal Gorge Field Office, 3028 E. Main Street, Cañon City, CO 81212. You may also send comments via email to
Kalem Lenard, Outdoor Recreation Planner, at the above address, by phone
Written comments on the proposed supplementary rules should be specific, confined to issues pertinent to the proposed supplementary rules, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the rules that the comment is addressing. The BLM is not obligated to consider or include in the Administrative Record for the final rules comments that the BLM receives after the close of the comment period (see
Cache Creek Placer Area is located immediately west and south of the town of Granite, Colorado, and includes Cache Creek, which flows into the Arkansas River. It was the site of one of the first large mining communities in Colorado during the late 1800s. In January 2000, the BLM acquired 2,160 acres through which Cache Creek flows, extending from the San Isabel National Forest boundary to Highway 24. The BLM acquired the parcel through a grant from the Land and Water Conservation Fund, a Federal program that conserves irreplaceable lands and improves outdoor recreation opportunities throughout the nation. The BLM purchased it to help protect crucial elk and riparian habitat as well as to provide recreational opportunities. Recreational mineral collection is one of the activities occurring in the area. Collection methods include gold panning and hand sluicing. The 2,160-acre parcel is not open to the General Mining Law of 1872. The rising price of gold has increased the interest in mineral collection, therefore increasing use at Cache Creek. Due to the high volume of soil that recreational mineral collectors are processing, excessive levels of sediment have collected at the Cache Creek stream, impacting a recovering fishery. The increase in use has also led to user conflicts and human safety hazards, such as unstable holes and large trees. Conflicts with off-leash dogs disturbing other visitors as well as pet waste left in the wetland area are also a common occurrence.
The Cache Creek parcel is not open to the General Mining Law. The parcel is regulated under 43 CFR 8365.1-5, which confines mineral extraction to only “recreational” mineral specimen collection. These regulations do not allow motorized or mechanical devices to aid in mineral specimen collection.
In 2012, the BLM began the public input process for a management plan for the 2,160-acre Cache Creek parcel to manage the increasing impacts and conflicts related to increased recreational use. The management strategy allows hobby recreational placer activities to continue, while mitigating impacts to resources. The public process included presentations and site tours with the Front Range Resource Advisory Council and collaboration with stakeholders and user groups. On March 3, 2014, the BLM held a 30-day public scoping period requesting public input. Based on feedback received during this process, the BLM developed a proposed action and draft Environmental Assessment (EA), which was released for a 30-day public review on December 5, 2014. The BLM incorporated comments into the Final EA and corresponding Decision Record signed on February 23, 2016.
The decision designated the Cache Creek parcel as a Special Area, defined as an area where the BLM “determines that the resources require special management and control measures for their protection” under 43 CFR 2932.5. The decision also provides that a Special Recreation Permit (SRP) will be required for recreational placer activities only. In addition, the decision requires a fee to obtain a permit from Memorial Day weekend to November 30.
The proposed supplementary rules would implement the Cache Creek Placer Area Management Plan as follows:
In accordance with 43 CFR subpart 2932, an SRP would be required for recreational mineral collection activities related to placer mining activities. As authorized by 43 CFR 2932.31(d), persons 16 years of age and older would be required to pay a fee of $5 per day or $25 annually. Digging within the Cache Creek parcel would be limited to a designated area. The SRP would allow in-situ gold panning (but not digging) in the Cache Creek stream throughout the parcel and outside of the designated area. Dogs and other animals would be required to be on leashes within the designated area. Additional terms and conditions can be found in DOI-BLM-CO-200-2012-0038 DN.
The planning area consists of approximately 2,160 acres of public lands within Chaffee County, Colorado, in the following described townships:
The BLM has determined that these proposed supplementary rules are necessary to enhance public safety, protect natural and cultural resources, and reduce conflicts among public land users.
The proposed supplementary rules are not a significant regulatory action and are not subject to review by the Office of Management and Budget under Executive Order 12866. The proposed supplementary rules would not have an effect of $100 million or more on the economy and would not adversely affect in a material way productivity; competition; jobs; the environment; public health or safety; or State, local or tribal governments or communities. The proposed supplementary rules would not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The proposed supplementary rules do not materially alter the budgetary effects of entitlements; grants; user fees or loan programs; or the rights or obligations of their recipients; nor do they raise novel legal or policy issues. These proposed supplementary rules would merely impose limitations on certain
These proposed supplementary rules implement key decisions in the Cache Creek Placer Area Management Plan. During the National Environmental Policy Act (NEPA) review for the Management Plan, the BLM fully analyzed the substance of these proposed supplementary rules in an EA (DOI-BLM-CO-200-2012-0069 EA). The BLM signed the Decision Record for the EA on February 23, 2016, and found the proposed supplementary rules implementing the plan decisions would not constitute a major Federal action significantly affecting the quality of the human environment under section 102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C). A detailed statement under NEPA is not required. The Cache Creek Placer Area Management Plan EA, Finding of No Significant Impact, and Decision Record are on file in the BLM Royal Gorge Field Office at the address specified in the
Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 601-612, to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. The proposed supplementary rules would have no effect on business entities of any size. The proposed supplementary rules would merely impose reasonable restrictions on certain recreational activities on certain public lands to protect natural resources and the environment and human health and safety. Therefore, the BLM certifies under the RFA that these proposed supplementary rules would not have a significant economic impact on a substantial number of small entities.
These proposed supplementary rules are not a “major rule” as defined at 5 U.S.C. 804(2). These proposed supplementary rules would merely impose reasonable restrictions on certain recreational activities on certain public lands to protect natural resources, the environment and human health and safety. These proposed supplementary rules would not:
(1) Have an annual effect on the economy of $100 million or more;
(2) Cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local agencies, or geographic regions; or
(3) Have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
The proposed supplementary rules would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year; nor would they have a significant or unique effect on State, local, or tribal governments or the private sector. The proposed supplementary rules would merely impose reasonable restrictions on certain recreational activities on certain public lands to protect natural resources, the environment and human health and safety. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
The proposed supplementary rules do not constitute a government action capable of interfering with constitutionally-protected property rights. The proposed supplementary rules would not address property rights in any form and would not cause the impairment of constitutionally-protected property rights. Therefore, the BLM has determined that these proposed supplementary rules would not cause a “taking” of private property or require further discussion of takings implications under this Executive Order.
The proposed supplementary rules would not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, the BLM has determined that these proposed supplementary rules do not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.
Under Executive Order 12988, the BLM has determined that these proposed supplementary rules would not unduly burden the judicial system and that they meet the requirements of Sections 3(a) and 3(b)(2) of Executive Order 12988.
In accordance with Executive Order 13175, the BLM has found that these proposed supplementary rules do not include policies that have tribal implications and would have no bearing on trust lands or on lands for which title is held in fee status by Indian tribes or U.S. Government-owned lands managed by the Bureau of Indian Affairs.
In developing these proposed supplementary rules, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Section 515 of Pub. L. 106-554).
These proposed supplementary rules do not comprise a significant energy action. These proposed supplementary rules would not have an adverse effect on energy supply, production or consumption and have no connection with energy policy.
In accordance with Executive Order 13352, the BLM has determined that the proposed supplementary rules would not impede facilitating cooperative conservation; would take appropriate account of and consider the interests of persons with ownership or other legally recognized interests in land or other natural resources; would properly accommodate local participation in the Federal decision-making process; and would provide that the associated programs, projects and activities are consistent with protecting public health and safety.
In accordance with the Paperwork Reduction Act (44 U.S.C. 3501-3521), the Office of Management and Budget (OMB) has reviewed and approved the information collection requirements for special recreation permits. The relevant OMB control number is 1004-0119,
The principal author of these proposed supplementary rules is Kalem Lenard, Outdoor Recreation Planner, BLM, Royal Gorge Field Office.
For the reasons stated in the preamble and under the authorities for supplementary rules found at 43 U.S.C. 1740, 43 U.S.C. 315a, and 43 CFR 8365.1-6, the BLM Colorado State Director proposes supplementary rules for public lands within the BLM Royal Gorge Field Office to read as follows:
Unless otherwise authorized, the following acts are prohibited on all public lands, roads, trails and waterways administered by the BLM within the Cache Creek parcel:
1. No persons may collect minerals by any means within the Cache Creek parcel without a Special Recreation Permit (SRP).
2. Persons 16 years of age and over must pay a fee of $5 per day or $25 annually to obtain an SRP.
3. You must not violate terms and conditions of the SRP.
4. You must not bring an animal into the Cache Creek Placer Area between Memorial Day Weekend and November 30 unless the animal is on a leash not longer than 6 feet and secured to a fixed object or under control of a person, or is otherwise physically restricted at all times.
The following persons are exempt from these supplementary rules: Any Federal, State, local government officer or employee acting within the scope of their duties; members of any organized law enforcement, rescue, or firefighting force in performance of an official duty; and any persons, agencies, municipalities or companies whose activities are authorized in writing by the BLM.
Any person who violates any of these supplementary rules may be tried before a United States Magistrate and fined in accordance with 18 U.S.C. 3571, imprisoned no more than 12 months under 43 U.S.C. 1733(a) and 43 CFR 8360.0-7, or both. In accordance with 43 CFR 8365.1-7, State or local officials may also impose penalties for violations of Colorado law.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Forest Service will prepare an Environmental Impact Statement (EIS) to disclose the environmental effects of commercial and non-commercial vegetation management activities, prescribed burning, road activities, stream and aquatic habitat improvements, and other restoration activities. The project is located on the Bly and Chiloquin Ranger Districts, Fremont-Winema National Forest, Klamath County, Oregon.
Comments concerning the scope of the analysis must be received by November 14, 2016. The draft environmental impact statement is expected May 2017 and the final environmental impact statement is expected August 2017.
Send written comments to Eric Watrud, Acting Forest Supervisor, Fremont-Winema National Forest, c/o Jody Perozzi, PO Box 25, Bly, OR 97622. Comments may also be sent via email to
Jody Perozzi, Environmental Coordinator Bly Ranger District; PO Box 25, Bly, OR 97622. Phone: 541-353-2723. Email:
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
The East Hills Project area encompasses approximately 169,000 acres, including 138,733 acres of National Forest System lands managed by the Forest Service, and approximately 30,500 acres of the Sycan Marsh Preserve owned and managed by The Nature Conservancy. The majority of the project is within the Klamath Tribes' former 1954 reservation. The project area is located approximately 10 miles northwest of the town of Bly, OR. The project area crosses two Ranger District boundaries: Bly (38%) and Chiloquin (62%), and is managed under two National Forest Land and Resource Management Plans (LRMP) as amended: the 1990 Winema LRMP and the 1989 Fremont LRMP. The Sycan Wild and Scenic River flows through the middle of the project area forming the boundary between lands managed under the Fremont LRMP and those managed under the Winema LRMP. The legal description of the project area includes Townships 31, 32, 33, 34, 35 South, and Ranges 10, 11, 12, 13, 14 East, Willamette Meridian, Klamath County, Oregon.
The purpose of the project is to conduct restoration management activities to improve forest resiliency and sustainability, maintain and enhance habitat diversity, manage the road system, and restore hydrologic functioning, thereby moving the landscape towards the goals, objectives, and desired future conditions directed by the Fremont and Winema LRMPs, as amended by the Eastside Screens and INFISH. The underlying needs for the East Hills Project derive from the differences between the current landscape condition, and the goals, objectives, and desired future conditions directed by the Fremont and Winema LRMPs, as amended by the Eastside Screens and INFISH. To promote an ecologically resilient landscape consistent with the desired conditions outlined in the Forest Plans there is a need to: (1) Reduce stand densities to improve vigor and increase resilience to insects, disease, drought, and wildfire; (2) Maintain and promote development of late/old seral (LOS) habitat consistent with the historic range of variability (HRV); (3) Maintain LOS components, by protecting and releasing large and old trees from competition; (4) Restore dominance of ponderosa pine and other fire- and drought-tolerant species; (5) Create spatial heterogeneity within stands and across the landscape; (6) Create age class diversity in climax lodgepole pine stands; (7) Reduce fuel loads and reintroduce fire on the landscape; (8) Enhance and restore non-forested habitat diversity; (9) Conserve, improve, and restore habitat for wildlife and botanical species; (10) Improve mule deer habitat; (11) Conserve and restore cultural plants; (12) Maintain and restore aspen and other hardwoods; (13) Restore and enhance natural stream function and associated habitats; (14) Reduce road densities; (15) Maintain opportunities for sustainable recreation activities; and (16) Provide forest products as a by-product of meeting the above objectives.
The Forest proposed action includes restoration activities for the following resources: vegetation management, stream and aquatic habitat, and road systems to address the purpose and need. These activities would occur over approximately the next 10 years.
Vegetation management will include a combination of commercial thinning, small tree thinning, prescribed burning, and other fuels treatments. The use of different methods would be determined by site conditions, accesibility and specific resource protection needs. The proposal includes four different vegetation restoration treatment emphasis areas: (1) Mixed conifer; (2) lodgepole pine; (3) meadow/riparian; (4) ponderosa pine.
The proposed action contains stream restoration and fish passage activities including repair of headcuts and incised stream channels, large wood addition, streambank stabilization, and culvert replacements.
Approximately 19 miles of roads are proposed to be closed and approximately 243 miles of roads are proposed for decommissioning post-implementation. Maintenance level increases are proposed for approximately 8 miles of roads to provide through routes of open roads.
The East Hill Project will also include a variety of project design and resource protection measures that serve to mitigate the impact of activities to resources, including air quality, cultural and heritage, wildlife, aquatic species,
The Forest Service will consider a range of alternatives. One of these will be the “no action” alternative in which none of the proposed actions would be implemented. Additional alternatives may be considered in response to issues raised by the public during the scoping process or due to additional concerns for resource values identified by the interdisciplinary team.
The Forest Supervisor of the Fremont-Winema National Forest, 1301 South G Street, Lakeview, OR 97630, is the Responsible Official. As the Responsible Official, I will decide if the proposed action will be implemented. I will document the decision and rationale for the decision in the Record of Decision. I have delegated the responsibility for preparing the draft EIS and final EIS to the District Ranger, Bly Ranger District.
Based on the purpose and need, the Responsible Official reviews the proposed action, the other alternatives, the environmental consequences, and public comments on the analysis in order to make the following decision: (1) Whether to implement timber harvest and associated fuels treatments, prescribed burning, road management activities, and stream improvements, including design features and potential mitigation measures to protect resources; and if so, how much and at what specific locations; (2) What, if any, project-specific Forest Plan Amendments will be necessary to implement the project; (3) What, if any, specific project monitoring requirements are needed to assure design features and potential mitigation measures are implemented and effective, and to evaluate the success of the project objectives.
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. The interdisciplinary team will continue to seek information, comments, and assistance from Federal, State, and local agencies, Tribal governments, and other individuals or organizations that may be interested in, or affected by, the proposed action.
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered.
Forest Service, USDA.
Notice of Meeting.
The Northern New Mexico Resource Advisory Committee (RAC) will meet in Santa Fe, New Mexico. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following Web site:
The meeting will be held November 17-18, 2016 starting at 10:00 a.m. on November 17 and 8:00 a.m. on November 18. All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at the Santa Fe National Forest Supervisor's Conference Room, 11 Forest Lane, Santa Fe, New Mexico 87508. Written comments may be submitted as described under
Reuben Montes, RAC Coordinator, by phone at 505-438-5356 or via email at
The purpose of the meeting is to review and recommend funding of project 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 November 10, 2016 to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Reuben Montes, RAC Coordinator, 11 Forest Lane, Santa Fe, NM 87508; by email to
Forest Service, USDA; Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969 (NEPA), as amended; the Federal Land Policy and Management Act of 1976, as amended; and the National Forest Management Act of 1976, as amended (NFMA), the Bureau of Land Management (BLM), the U.S. Forest Service (USFS) and the U.S. Army Corps of Engineers (USACE) have participated as cooperating agencies with the Federal Energy Regulatory Commission (FERC) in the preparation of the Mountain Valley Pipeline Project (MVP) and Equitrans Expansion Project (Equitrans) Draft Environmental Impact Statement (EIS). The Draft EIS addresses the impacts of these projects, the associated draft Jefferson National Forest Revised Land and Resource Management Plan (LRMP) amendments of the USFS, and the application to the BLM for a right-of-way grant sought by Mountain Valley Pipeline LLC (Mountain Valley) for the MVP project. With this agency-specific Notice of Availability, the BLM and the USFS are announcing the opening of the FERC comment period. Comments need to be timely and specific, showing a direct relationship to the proposal and include supporting reasons.
To ensure that comments will be considered, the FERC must receive written comments on the MVP Project and Equitrans Project Draft EIS within 90 days following the date of publication of the FERC Notice of Availability (NOA) for the draft EIS in the
You may submit comments related to the MVP Project and Equitrans Project Draft EIS, including any comments related to the BLM consideration of the issuance of a right-of-way grant to cross federal lands, the USFS consideration of LRMP amendments, and/or the USFS consideration of submitting a concurrence to BLM, to the FERC by any of the four methods listed below. The FERC 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 eComment feature on the FERC's Web site (
(2) You can file your comments electronically by using the eFiling feature on the FERC's Web site (
(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 (CP16-10-000) 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, you can submit oral comments at any of the FERC-sponsored public sessions that are scheduled in the FERC Notice of Availability for the draft EIS.
Your comments must reference the FERC Docket number for the Mountain Valley Pipeline Project, LP, Docket No. CP16-10-000, to be correctly attributed to this specific project. Copies of the MVP Project and Equitrans Project Draft EIS are available for inspection in the office of the Forest Supervisor for the George Washington and Jefferson National Forests.
Additional information about the projects is available from the FERC's Office of External Affairs at 866-208-FERC (3372), or on the FERC Web site (
This NOA is specific to the BLM and the USFS and provides notice that these agencies have participated as cooperating agencies with FERC in the preparation of the MVP Project and Equitrans Project Draft EIS. The Mountain Valley Pipeline route would cross about 3.4 miles of lands managed by the USFS, the Jefferson National Forest, in Monroe County, West Virginia and Giles and Montgomery counties, Virginia. The Equitrans Expansion Project would not cross the Jefferson National Forest.
The FERC is the NEPA Lead Federal Agency for the environmental analysis of the construction and operation of the proposed MVP and Equitrans Projects. Under the Mineral Leasing Act (30 U.S.C. 185
Before issuing the right-of-way grant, the BLM would acquire the written concurrences of the USFS and USACE. Through this concurrence process, the USFS would submit to the BLM any specific stipulations applicable to lands, facilities, water bodies, and easements for inclusion in the right-of-way grant.
In order for the potential actions to be consistent with the LRMP, the USFS would need to make several amendments to the LRMP. The amendments would provide for the construction and operation of the natural gas pipeline to occur on the Jefferson National Forest. The USFS would need to make these amendments before USFS could issue a letter of concurrence to the BLM.
The FERC's draft EIS includes the consideration of a BLM right-of-way grant across federal lands for the USFS and USACE and the associated USFS LRMP amendments. The BLM and USFS can adopt FERC's EIS for agency decisions if the analysis provides sufficient evidence to support the agencies' decisions and the agencies are satisfied that agency comments and suggestions have been addressed.
The BLM's purpose and need for the proposed action in FERC's draft EIS is to respond to a right-of-way grant
The USFS's purpose and need for the proposed action is to evaluate the following amendments to the LRMP for the Jefferson National Forest and to consider issuing a concurrence to the BLM for the right-of-way grant.
The first type of LRMP amendment would be a “plan-level amendment” that would change land allocations. This would change future management direction for the lands reallocated to the new management prescription (Rx) and is required by LRMP Standard FW-248.
Rx 5C-Designated Utility Corridors contain special uses which serve a public benefit by providing a reliable supply of electricity, natural gas, or water essential to local, regional, and national economies. The new Rx 5C land allocation would be 500 feet wide (250 feet wide on each side of the pipeline), with two exceptions: (1) The area where the pipeline crosses Rx 4A-Appalachian National Scenic Trail Corridor would remain in Rx 4A; and (2) the new 5C area would not cross into Peters Mountain Wilderness so the Rx 5C area would be less than 500 feet wide along the boundary of the Wilderness.
The second type of amendment would be a “project-specific amendment” that would apply only to the construction and operation of this pipeline. The following standards would require a temporary “waiver” to allow the project to proceed. These amendments would not change LRMP requirements for other projects or authorize any other actions.
The decision for a right-of-way grant across federal lands would be documented in a Record of Decision (ROD) issued by the BLM. The BLM's decision to issue, condition, or deny a right of way would be subject to BLM administrative review procedures established in 43 CFR 2881.10 and the procedures established in section 313(b) of the Energy Policy Act of 2005. The USFS concurrence to BLM to issue the right-of-way grant would not be a decision subject to the NEPA and therefore would not be subject to USFS administrative review procedures. The USFS would issue its own draft ROD for the LRMP amendments that would be subject to administrative review prior to final decision. Proposed Amendment 1 was developed in accordance to 36 CFR part 219 (2012 version) regulations and would be subject to the administrative review procedures under 36 CFR part 219 subpart B. Proposed Amendments 2, 3 and 4 were developed in accordance to 36 CFR part 219 (2012) regulations but would be subject to the administrative review procedures under 36 CFR part 218 regulations subparts A and B, per 36 CFR 219.59(b). Refer to the applicable administrative review regulations for eligibility requirements.
The BLM is requesting public comments on the issuance of a right-of-way grant that would allow the MVP to be constructed on Federal lands managed by the USFS and USACE. The USFS is requesting public comments on the consideration of submitting a concurrence to BLM and the draft amendments of the LRMP to allow for the MVP Project on the Jefferson National Forest. All comments must be submitted to the FERC, the Lead Federal Agency within the timeframe stated in FERC's Notice of Availability for their draft EIS. Refer to Docket CP16-10-000 (Mountain Valley Pipeline) in all correspondence to ensure that your comments are correctly filed in the record. You may submit comments to the FERC using one of the methods listed in the
40 CFR 1506.6, 40 CFR 1506.10, 43 CFR 1610.2.
Forest Service, USDA.
Notice of meeting.
The Pacific Northwest National Scenic Trail Advisory Council (Council) will meet in Sandpoint, Idaho. The Council is authorized under Section 5(d) of the National Trails System Act of 1968 (Act) and operates in compliance with the Federal Advisory Committee Act (FACA). Additional information concerning the Council, including the meeting summary/minutes, can be found by visiting the Council's Web site at:
The meeting will be held on the following dates and times:
• Wednesday, October 14, 2015 from 8:00 a.m. to 5:00 p.m. PDT
• Thursday, October 15, 2015 from 8:00 a.m. to 5:00 p.m. PDT
All meetings are subject to cancellation. For updated status of meeting prior to attendance, please contact the person listed under
The meeting will be held at the Best Western Edgewater Resort, 56 Bridge Street, Sandpoint, Idaho. Written comments may be submitted as described under
Matt McGrath, Pacific Northwest National Scenic Trail Program Manager, by phone at 425-583-9304, or by email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to provide:
1. Overview of legislation, policy, and interagency planning requirements for National Scenic Trails;
2. Discussion of planning approach, process, and schedule for the Pacific Northwest National Scenic Trail comprehensive plan; and
3. Recommendations regarding the work, priorities, and schedule for the Advisory Council.
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 submit a request in writing by October 2, 2015, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the Council may file written statements with the Council's staff before or after the meeting. Written comments and time requests for oral comments must be sent to Matt McGrath, Pacific Northwest National Scenic Trail Program Manager, 2930 Wetmore Avenue, Suite 3A, Everett, Washington 98201, or by email to
October 20, 2016 1:00 p.m. EDT.
U.S. Chemical Safety Board, 1750 Pennsylvania Ave. NW., Suite 910, Washington, DC 20006.
Open to the public.
The Chemical Safety and Hazard Investigation Board (CSB) will convene a public meeting on October 20, 2016, starting at 1:00 p.m. EDT in Washington, DC, at the CSB offices located at 1750 Pennsylvania Avenue NW., Suite 910. The Board will discuss open investigations, the status of audits from the Office of the Inspector General; financial and organizational updates, and a review of the agency's action plan. An opportunity for public comment will be provided.
The meeting is free and open to the public. If you require a translator or interpreter, please notify the individual listed below as the “Contact Person for Further Information,” at least three business days prior to the meeting.
A conference call line will be provided for those who cannot attend in person. Please use the following dial-in number to join the conference: 1-888-862-6557 Confirmation Number 43587416.
The CSB is an independent federal agency charged with investigating accidents and hazards that result, or may result, in the catastrophic release of extremely hazardous substances. The agency's Board Members are appointed by the President and confirmed by the Senate. CSB investigations look into all aspects of chemical accidents and hazards, including physical causes such as equipment failure as well as inadequacies in regulations, industry standards, and safety management systems.
The time provided for public statements will depend upon the number of people who wish to speak. Speakers should assume that their presentations will be limited to three minutes or less, but commenters may submit written statements for the record.
Hillary Cohen, Communication Manager, at
U.S. Census Bureau, 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.
To ensure consideration, written comments must be submitted on or before December 13, 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(s) and instructions should be directed to Erica Filipek, U.S. Census Bureau, MCD, CENHQ Room 7K057, 4600 Silver Hill Road, Washington, DC 20233, telephone (301) 763-5161 (or via the Internet at
The U.S. Census Bureau plans to request a three-year extension of the current Office of Management and Budget (OMB) clearance of the Questionnaire for Building Permit Official (SOC-QBPO). The Census Bureau uses the Computer-Assisted Personal Interviewing (CAPI) electronic questionnaire SOC-QBPO to collect information from state and local building permit officials on: (1) The types of permits they issue, (2) the length of time a permit is valid, (3) how they store permits, and (4) the geographic coverage of the permit system. We need this information to carry out the sampling for the Survey of Housing Starts, Sales, and Completions (OMB number 0607-0110), also known as Survey of Construction (SOC). The SOC provides widely used measures of construction activity, including the economic indicators Housing Starts, Housing Completions, and New Housing Sales.
The current OMB clearance is scheduled to expire on May 31, 2017. We will continue to use the current CAPI questionnaire with minor revisions to question verbiage and questionnaire flow. The overall length of the interview will not change. The sample size will slightly change due to an increase in the number of local governments that issue building permits.
The Census Bureau uses its field representatives to obtain information on the operating procedures of a permit office using the SOC-QBPO. The field representative visits the permit office, conducts the interview, and completes this electronic form.
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.
First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce.
Announcement of availability of a draft programmatic environmental impact statement and of public meetings.
The First Responder Network Authority (“FirstNet”) announces the availability of the Draft Programmatic Environmental Impact Statement for the South Region (“Draft PEIS”). FirstNet also announces a series of public meetings to be held throughout the South Region to receive comments on the Draft PEIS. The Draft PEIS evaluates the potential environmental impacts of the proposed nationwide public safety broadband network in the South Region, composed of Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, New Mexico, North Carolina, Oklahoma, South Carolina, Tennessee, and Texas.
Submit comments on the Draft PEIS for the South Region on or before December 13, 2016. FirstNet will also hold public meetings in each of the 13 states. See
At any time during the public comment period, members of the public, public agencies, and other interested parties are encouraged to submit written comments, questions, and concerns about the project for FirstNet's consideration or to attend any of the public meetings. Written comments may be submitted electronically via
For more information on the Draft PEIS, contact Genevieve Walker, Director of Environmental Compliance, First Responder Network Authority, National Telecommunications and Information Administration, U.S. Department of Commerce, 12201 Sunrise Valley Drive, M/S 243, Reston, VA 20192.
Attendees can obtain information regarding the project and/or submit a comment in person during public meetings. The meeting details are as follows:
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The Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96, Title VI, 126 Stat. 156 (codified at 47 U.S.C. 1401
The National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) (“NEPA”) requires federal agencies to undertake an assessment of environmental effects of their proposed actions prior to making a final decision and implementing the action. NEPA requirements apply to any federal project, decision, or action that may have a significant impact on the quality of the human environment. NEPA also establishes the Council on Environmental Quality (“CEQ”), which issued regulations implementing the procedural provisions of NEPA (see 40 CFR parts 1500-1508). Among other considerations, CEQ regulations at 40 CFR 1508.28 recommend the use of
Due to the geographic scope of FirstNet (all 50 states, the District of Columbia, and five territories) and the diversity of ecosystems potentially traversed by the project, FirstNet has elected to prepare five regional PEISs. The five PEISs were divided into the East, Central, West, South, and Non-Contiguous Regions. The South Region includes Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, New Mexico, North Carolina, Oklahoma, South Carolina, Tennessee, and Texas. The Draft PEIS analyzes potential impacts of the deployment and operation of the NPSBN on the natural and human environment in the South Region, in accordance with FirstNet's responsibilities under NEPA.
All comments received by the public and any interested stakeholders will be evaluated and considered by FirstNet during the preparation of the Final PEIS. Once a PEIS is completed and a Record of Decision (ROD) is signed, FirstNet will evaluate site-specific documentation, as network design is developed, to determine if the proposed project has been adequately evaluated in the PEIS or warrants a Categorical Exclusion, an Environmental Assessment, or an Environmental Impact Statement.
IRIS USA, Inc. (IRIS) submitted a notification of proposed production activity to the FTZ Board for its facility in Surprise, Arizona, within FTZ 277. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on September 29, 2016.
The IRIS facility is located within Site 12 of FTZ 277. The facility is used to produce plastic household storage/organizational containers and pet carriers/pens. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials and 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 IRIS from customs duty payments on the foreign-status components used in export production. On its domestic sales, IRIS would be able to choose the duty rates during customs entry procedures that apply to plastic household storage/organizational containers and pet carriers/pens (duty rates range from free to 5.3%) for the foreign-status inputs noted below. Customs duties also could possibly be
The components and materials sourced from abroad include: polypropylene resin; plastic handles/buckles; steel latch plates/drawer locks/hinges/latch sets; steel/plastic casters; aluminum tubes; and, rubber caps (duty rates range from 2.5% to 6.5%).
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 23, 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 Diane Finver at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In response to requests from interested parties, the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain lined paper products (CLPP) from India, covering the period September 1, 2014, through August 31, 2015. We preliminarily determine that mandatory respondent Navneet Education Ltd. (Navneet) made sales of subject merchandise at less than normal value (NV) during the period of review (POR) and that mandatory respondent Kokuyo Riddhi Paper Products Private Limited (Kokuyo Riddhi) did not. Interested parties are invited to comment on these preliminary results.
Effective October 14, 2016.
Cindy Robinson or George McMahon, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington DC 20230; telephone (202) 482-3797 or (202) 482-1167, respectively.
On September 2, 2015, the Department published a notice of initiation of an administrative review of the antidumping order on November 9, 2015.
As explained in the memorandum from the Acting Assistant Secretary for Enforcement and Compliance, the Department exercised its discretion to toll all administrative deadlines due to a closure of the Federal Government. As a result, the revised deadline for the preliminary results of this review was June 7, 2016.
On September 7, 2016, Petitioner submitted new factual information regarding Navneet's U.S. sales data.
The merchandise covered by the
In response to the Department's quantity and value questionnaire issued on November 9, 2015, Lodha Offset reported that it made no sales of subject merchandise during the POR.
The Department is conducting this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Constructed export price or export price is calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act. For a full description of the
As a result of this review, the Department calculated a
Upon issuance of the final results, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. If the weighted-average dumping margin for Kokuyo Riddhi or Navneet is not zero or
In accordance with the Department's “automatic assessment” practice, for entries of subject merchandise during the POR produced by each respondent for which they did not know that their merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for respondents noted above will be the rates established in the final results of this administrative review; (2) for merchandise exported by producers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the producer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the producer of the subject merchandise; and (4) the cash deposit rate for all other producers or exporters will continue to be 3.91 percent, the all-others rate established in the investigation. These cash deposit requirements, when imposed, shall remain in effect until further notice.
The Department will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results.
Interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, using Enforcement and Compliance's ACCESS system within 30 days of publication of this notice.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2), the Department will issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their case briefs,
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties and/or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and increase the subsequent assessment of the antidumping duties by the amount of antidumping duties reimbursed.
These preliminary results of review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h) and 351.221(b)(4).
International Trade Administration, U.S. Department of Commerce.
Notice of an open meeting.
The United States Investment Advisory Council (Council) will hold a meeting on Monday, October 31, 2016. The Council was chartered on April 6, 2016, to advise the Secretary of Commerce on matters relating to the promotion and retention of foreign direct investment in the United States. At the meeting, members will deliberate and vote on a set of recommendations to Secretary Pritzker on the facilitation of foreign direct investment into the United States, including data management and provision of information on workforce and investment opportunities across U.S. regions, facilitation of infrastructure investment, and mechanisms to increase investment competitiveness, in addition to other topics. The agenda may change to accommodate Council business. The final agenda will be posted on the Department of Commerce Web site for the Council at
Monday, October 31, 2016, 1:30 p.m.-4:00 p.m. EDT. The deadline for members of the public to register, including requests to make comments during the meeting and for auxiliary aids, or to submit written comments for dissemination prior to the meeting, is 5 p.m. EDT on October 24, 2016.
The meeting will be held at the Department of Commerce, 1401 Constitution Avenue NW., Washington, DC Requests to register (including to speak or for auxiliary aids) and any written comments should be submitted to: United States Investment Advisory Council, U.S. Department of Commerce, Room 4043, 1401 Constitution Avenue NW., Washington, DC 20230,
Li Zhou, United States Investment Advisory Council, Room 4043, 1401 Constitution Avenue NW., Washington, DC 20230, telephone: 202-482-4501, email:
In addition, any member of the public may submit pertinent written comments concerning the Council's affairs at any time before or after the meeting. Comments may be submitted to Li Zhou at the contact information indicated above. To be considered during the meeting, comments must be received no later than 5:00 p.m. EDT on October 24, 2016, to ensure transmission to the Council members prior to the meeting. Comments received after that date and time will be distributed to the members but may not be considered during the meeting. Statements will be posted on the United States Investment Advisory Council Web site (
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) preliminarily determines that phosphor copper from the Republic of Korea (Korea) is being, or is likely to be, sold in the United States at less than fair value (LTFV). The Department also preliminarily determines that critical circumstances do not exist with regard to imports of phosphor copper from Korea. The period of investigation (POI) is January 1, 2015, through December 31, 2015. Interested parties are invited to comment on this preliminary determination.
Effective October 14, 2016.
Cindy Robinson AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3797.
In response to petitions filed on March 9, 2016,
The product covered by this investigation is phosphor copper from Korea. For a full description of the scope of this investigation,
In accordance with the preamble to the Department's regulations,
On August 5, 2016, the Department published the notice of postponement for the preliminary determination in this investigation in accordance with section 733(c)(1)(B) of the Act and 19 CFR 351.205(f)(1).
The Department is conducting this investigation in accordance with section 731 of the Act. Export prices have been calculated in accordance with section 772 of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our preliminary conclusions,
On July 27, 2016, Metallurgical Products Company (Petitioner) filed a timely critical circumstance allegation pursuant to section 733(e) of the Act and 19 CFR 351.206(c)(l), alleging that critical circumstances exist with respect to imports of phosphor copper from Korea.
Consistent with sections 733(d)(1)(A)(ii) and 735(c)(5) of the Act, the Department calculated an estimated all-others rate. Section 735(c)(5)(A) of the Act provides that the estimated all-others rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
Bongsan Co., Ltd. (Bongsan) is the only respondent for which the Department has calculated a company-specific rate. Therefore, for purposes of determining the “all others” rate and pursuant to section 735(c)(5)(A) of the Act, we are using the dumping margin calculated for Bongsan, as referenced in the “Preliminary Determination” section below.
The Department preliminarily determines that the following weighted-average dumping margins exist:
Because the Department has made an affirmative preliminary determination of sales at less than fair value, in accordance with section 733(d)(2) of the Act, we are directing U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of phosphor copper from Korea, as described in the “Scope of the Investigation” section, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Pursuant to section 733 (d)(1)(B) of the Act and 19 CFR 351.205(d), the Department will instruct CBP to require a cash deposit equal to the weighted-average amount by which the NV exceeds U.S. price as indicated in the chart above. The suspension of liquidation instructions and cash deposit requirements will remain in effect until further notice.
We will disclose the calculations performed to interested parties in this proceeding within five days after public announcement of the preliminary determination in accordance with 19 CFR 351.224(b).
Interested parties are invited to comment on this preliminary determination. 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 investigation, 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.
All documents must be filed electronically using ACCESS. An electronically-filed request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice.
As provided in section 782(i) of the Act, we intend to verify information relied upon in making our final determination.
In accordance with section 733(f) of the Act, we are notifying the ITC of our affirmative preliminary determination of sales at LTFV. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
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 merchandise covered by this investigation is master alloys
Merchandise covered by this investigation is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheading 7405.00.1000. This HTSUS subheading is provided for convenience and customs purposes; the written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On September 6, 2016, the Department of Commerce (the Department) published the preliminary determination of sales at less than fair value (LTFV) in the LTFV investigation of truck and bus tires from the People's Republic of China (the PRC). We are amending our preliminary determination to correct two ministerial errors which are significant in combination.
Effective October 14, 2016.
Yang Jin Chun or Andre Gziryan, AD/CVD Operations Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5760 and (202) 482-2201, respectively.
On September 6, 2016, the Department published the preliminary determination that truck and bus tires from the PRC are being sold in the United States at LTFV, as provided in section 733 of the Tariff Act of 1930, as amended (the Act).
The period of investigation is July 1, 2015, through December 31, 2015.
The products covered by this investigation are truck and bus tires. For a full description of the scope of this investigation,
The Department will analyze any comments received and, if appropriate, correct any significant ministerial error by amending the preliminary determination according to 19 CFR 351.224(e). A ministerial error is defined as “an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.”
Pursuant to 19 CFR 351.224(e) and (g)(1), the Department is amending the
Because PCT is the only mandatory respondent eligible for a separate rate, PCT is the only respondent for which we individually calculated an estimated weighted-average dumping margin. For this reason, we assigned PCT's calculated rate to all non-examined separate rate respondents. With this amended preliminary determination, the estimated weighted-average dumping margin for each non-examined separate rate respondent is also amended to 30.36 percent.
In the
The collection of cash deposits and suspension of liquidation will be revised accordingly, in accordance with section 733(d) and (f) of the Act and 19 CFR 351.224. The amended cash deposit rate will be 29.95 percent after the deduction of the export subsidy rate of 0.41 percent from 30.36 percent.
The Department preliminarily determines that the following estimated
We intend to disclose the calculations performed to parties in this proceeding within five days after public announcement of the amended preliminary determination in accordance with 19 CFR 351.224(b).
In accordance with section 733(f) of the Act, we will notify the U.S. International Trade Commission of our amended preliminary determination.
This amended preliminary determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.224(e).
The scope of the investigation covers truck and bus tires. Truck and bus tires are new pneumatic tires, of rubber, with a truck or bus size designation. Truck and bus tires covered by this investigation may be tube-type, tubeless, radial, or non-radial.
Subject tires have, at the time of importation, the symbol “DOT” on the sidewall, certifying that the tire conforms to applicable motor vehicle safety standards. Subject tires may also have one of the following suffixes in their tire size designation, which also appear on the sidewall of the tire:
All tires with a “TR,” “MH,” or “HC” suffix in their size designations are covered by this investigation regardless of their intended use.
In addition, all tires that lack one of the above suffix markings are included in the scope, regardless of their intended use, as long as the tire is of a size that is among the numerical size designations listed in the “Truck-Bus” section of the
Truck and bus tires, whether or not mounted on wheels or rims, are included in the scope. However, if a subject tire is imported mounted on a wheel or rim, only the tire is covered by the scope. Subject merchandise includes truck and bus tires produced in the subject country whether mounted on wheels or rims in the subject country or in a third country. Truck and bus tires are covered whether or not they are accompanied by other parts,
Specifically excluded from the scope of this investigation are the following types of tires: (1) Pneumatic tires, of rubber, that are not new, including recycled and retreaded tires; and (2) non-pneumatic tires, such as solid rubber tires.
The subject merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 4011.20.1015 and 4011.20.5020. Tires meeting the scope description may also enter under the following HTSUS subheadings: 4011.99.4520, 4011.99.4590, 4011.99.8520, 4011.99.8590, 8708.70.4530, 8708.70.6030, and 8708.70.6060. On August 26, 2016, the Department included HTSUS subheadings 4011.69.0020, 4011.69.0090, and 8716.90.5059 to the case reference files, pursuant to requests by U.S. Customs and Border Protection and the petitioner.
While HTSUS subheadings are provided for convenience and for customs purposes, the written description of the subject merchandise is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) preliminarily determines that countervailable subsidies are being provided to producers and exporters of new pneumatic off-the-road tires (OTR Tires) from the People's Republic of China (PRC). The period of review (POR) is January 1, 2014, through December 31, 2014. Interested parties are invited to comment on these preliminary results.
Effective October 14, 2016.
Toni Page, Kathryn Wallace, or Chien-Min Yang, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1398, (202) 482-6251, or (202) 482-5484 respectively.
The products covered by the order are new pneumatic tires designed for off-the-road (OTR) and off-highway use. For a full description of the scope of this order,
On September 4, 2008, the Department issued a countervailing duty order on new pneumatic tires designed for OTR and off-highway use.
The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
As a result of this review, we preliminarily determine the countervailable subsidy rates to be:
There are 44 companies for which a review was requested that were not selected as mandatory respondents. We preliminarily based the non-selected rate on an average of Guizhou Tyre's and Xuzhou Xugong's subsidy rates. For a list of these companies, please see Appendix II.
The Department will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results.
Interested parties who wish to request a hearing must do so within 30 days of publication of these preliminary results by submitting a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, using Enforcement and Compliance's ACCESS system.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, the Department intends to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after publication of these preliminary results.
Upon issuance of the final results, the Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review. We intend to issue instructions to CBP 15 days after publication of the final results of review.
Pursuant to section 751(a)(2)(C) of the Act, the Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties, in the amounts shown above for each of the respective companies shown above, on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits at the most-recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.
These preliminary results of review are issued and published in accordance with sections 751(a)(l) and 777(i)(l) of the Act and 19 CFR 351.213 and 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on narrow woven ribbons with woven selvedge from Taiwan. The review covers four producers/exporters of the subject merchandise. The period of review (POR) is September 1, 2014, through August 31, 2015. We preliminarily determine that sales of subject merchandise to the United States have been made at prices below normal value (NV). We invite all interested parties to comment on these preliminary results.
Effective October 14, 2016.
David Crespo or Alice Maldonado, AD/
The merchandise subject to this order covers narrow woven ribbons with woven selvedge.
The Department is conducting this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Export price is calculated in accordance with section 772 of the Act. NV is calculated in accordance with section 773 of the Act. Because mandatory respondent A-Madeus failed to respond to the Department's questionnaire, we preliminarily determine to apply adverse facts available (AFA) to this respondent, in accordance with sections 776(a) and (b) of the Act and 19 CFR 351.308. For a full discussion of the rationale underlying our preliminary results, as well as a description of the methodology used,
A list of the topics included in the Preliminary Decision Memorandum is attached as an Appendix to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
On November 24, 2015, both Xiamen Yi He and Fujian Rongshu timely filed statements reporting that they made no shipments of subject merchandise to the United States during the POR. Subsequently, we received information from U.S. Customs and Border Protection (CBP) confirming Xiamen Yi He's and Fujian Rongshu's no shipment claims. Based on the foregoing, the Department preliminarily determines that Xiamen Yi He and Fujian Rongshu did not have any reviewable transactions during the POR. For additional information regarding this determination,
The Department preliminarily determines that the following weighted-average dumping margins exist:
The Department intends to disclose the calculations performed in connection with these preliminary results to interested parties within five days after the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance within 30 days of the date of publication of this notice.
The Department intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, no later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h), unless this deadline is extended.
Upon issuance of the final results, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review when the importer-specific assessment rate
Consistent with the Department's refinement of its assessment practice, for any entries of subject merchandise during the POR produced by Roung Shu for which it did not know that the merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
We intend to issue liquidation instructions to CBP 15 days after publication of the final results of this review.
The following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for each specific company listed above will be equal to the dumping margins established in the final results of this administrative review, unless the rate is less than 0.50 percent and, therefore,
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty (CVD) order on certain oil country tubular goods (OCTG) from India for the period of review (POR) December 23, 2013 through December 31, 2014. We preliminarily determine that Jindal SAW Ltd. (Jindal SAW) received countervailable subsidies during the POR.
Effective October 14, 2016.
Elfi Blum or Alexander Cipolla, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0197, and (202) 482-4956, respectively.
The Department initiated a review of four companies in this segment of the proceeding.
The merchandise covered by the order is certain oil country tubular goods (OCTG), which are hollow steel products of circular cross-section, including oil well casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, regardless of end finish (
The Department is conducting this review in accordance with section 751(a)(l)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found to be countervailable, we preliminarily determine that there is a subsidy,
We preliminarily determine the total estimated net countervailable subsidy rate for the period December 23, 2013 through December 31, 2014
The Department will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results.
Interested parties who wish to request a hearing must do so within 30 days of publication of these preliminary results by submitting a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, using Enforcement and Compliance's ACCESS system.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, the Department intends to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after publication of these preliminary results.
Upon issuance of the final results, the Department shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review. We intend to issue instructions to CBP 15 days after publication of the final results of review.
Pursuant to section 751(a)(2)(C) of the Act, the Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties, in the amounts shown above for each of the respective companies shown above, on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits at the most-recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.
These preliminary results of review are issued and published in accordance with sections 751(a)(l) and 777(i)(l) of the Act and 19 CFR 351.213 and 351.221(b)(4).
The merchandise covered by the order is certain oil country tubular goods (“OCTG”), which are hollow steel products of circular cross-section, including oil well casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, regardless of end finish (
Excluded from the scope of the order are: casing or tubing containing 10.5 percent or more by weight of chromium; drill pipe; unattached couplings; and unattached thread protectors.
The merchandise subject to the order is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7304.29.10.10, 7304.29.10.20, 7304.29.10.30, 7304.29.10.40, 7304.29.10.50, 7304.29.10.60, 7304.29.10.80, 7304.29.20.10, 7304.29.20.20, 7304.29.20.30, 7304.29.20.40, 7304.29.20.50, 7304.29.20.60, 7304.29.20.80, 7304.29.31.10, 7304.29.31.20, 7304.29.31.30, 7304.29.31.40, 7304.29.31.50, 7304.29.31.60, 7304.29.31.80, 7304.29.41.10, 7304.29.41.20, 7304.29.41.30, 7304.29.41.40, 7304.29.41.50, 7304.29.41.60, 7304.29.41.80, 7304.29.50.15, 7304.29.50.30, 7304.29.50.45, 7304.29.50.60, 7304.29.50.75, 7304.29.61.15, 7304.29.61.30, 7304.29.61.45, 7304.29.61.60, 7304.29.61.75, 7305.20.20.00, 7305.20.40.00, 7305.20.60.00, 7305.20.80.00, 7306.29.10.30, 7306.29.10.90, 7306.29.20.00, 7306.29.31.00, 7306.29.41.00, 7306.29.60.10, 7306.29.60.50, 7306.29.81.10, and 7306.29.81.50.
The merchandise subject to the order may also enter under the following HTSUS item numbers: 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.39.00.36, 7304.39.00.40, 7304.39.00.44, 7304.39.00.48, 7304.39.00.52, 7304.39.00.56, 7304.39.00.62, 7304.39.00.68, 7304.39.00.72, 7304.39.00.76, 7304.39.00.80, 7304.59.60.00, 7304.59.80.15, 7304.59.80.20, 7304.59.80.25, 7304.59.80.30, 7304.59.80.35, 7304.59.80.40, 7304.59.80.45, 7304.59.80.50, 7304.59.80.55, 7304.59.80.60, 7304.59.80.65, 7304.59.80.70, 7304.59.80.80, 7305.31.40.00, 7305.31.60.90, 7306.30.50.55, 7306.30.50.90, 7306.50.50.50, and 7306.50.50.70.
The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the order is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with August anniversary dates. In accordance with the Department's regulations, we are initiating those administrative reviews.
Effective October 14, 2016.
Brenda E. Waters, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482-4735.
The Department has received timely requests, in accordance with 19 CFR 351.213(b), for administrative reviews of various antidumping and countervailing duty orders and findings with August anniversary dates.
All deadlines for the submission of various types of information, certifications, or comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting time.
If a producer or exporter named in this notice of initiation had no exports, sales, or entries during the period of review (“POR”), it must notify the Department within 30 days of publication of this notice in the
In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the period of review. We intend to place the CBP data on the record within five days of publication of the initiation notice and to make our decision regarding respondent selection within 30 days of publication of the initiation
In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, the Department has found that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that the Department does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance has prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day deadline will be made on a case-by-case basis.
In proceedings involving non-market economy (“NME”) countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from the
All firms listed below that wish to qualify for separate rate status in the administrative reviews involving NME countries must complete, as appropriate, either a separate rate application or certification, as described below. For these administrative reviews, in order to demonstrate separate rate eligibility, the Department requires entities for whom a review was requested, that were assigned a separate rate in the most recent segment of this proceeding in which they participated, to certify that they continue to meet the criteria for obtaining a separate rate. The Separate Rate Certification form will be available on the Department's Web site at
Entities that currently do not have a separate rate from a completed segment of the proceeding
For exporters and producers who submit a separate-rate status application or certification and subsequently are selected as mandatory respondents, these exporters and producers will no longer be eligible for separate rate status unless they respond to all parts of the questionnaire as mandatory respondents.
In accordance with 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than August 31, 2017.
During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under 19 CFR 351.211 or a determination under 19 CFR 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine, consistent with
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the POR.
Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
On April 10, 2013, the Department published
Any party submitting factual information in an antidumping duty or countervailing duty proceeding must certify to the accuracy and completeness of that information.
On September 20, 2013, the Department modified its regulation concerning the extension of time limits for submissions in antidumping and countervailing duty proceedings:
These initiations and this notice are in accordance with section 751(a) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.221(c)(1)(i).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (“Department”) is conducting an administrative review of the antidumping duty order on certain new pneumatic off-the-road tires (“OTR tires”) from the People's Republic of China (“PRC”). The period of review (“POR”) is September 1, 2014, through August 31, 2015. The Department preliminarily finds that Xuzhou Xugong Tyres Co., Ltd. (“Xugong”), Xuzhou Armour Rubber Company Ltd. (“Armour”) and Xuzhou Hanbang Tyre Co., Ltd. (“Hanbang”) (collectively, “Xugong”), made sales of subject merchandise at less than normal value (“NV”) and that Trelleborg Wheel Systems Hebei Co. (“TWS Hebei”) had no shipments during the POR. The Department invites interested parties to comment on this preliminary determination.
Effective October 14, 2016.
Keith Haynes or Mandy Mallott, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5139 or (202) 482-6430, respectively.
On November 9, 2015, the Department initiated the seventh administrative review of the antidumping duty order on OTR tires from the PRC.
The merchandise covered by this order includes new pneumatic tires designed for off-the-road and off-highway use, subject to certain exceptions. The subject merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 4011.20.10.25, 4011.20.10.35, 4011.20.50.30, 4011.20.50.50, 4011.61.00.00, 4011.62.00.00, 4011.63.00.00, 4011.69.00.00, 4011.92.00.00, 4011.93.40.00, 4011.93.80.00, 4011.94.40.00, and 4011.94.80.00. The HTSUS subheadings are provided for convenience and customs purposes only; the written product description of the scope of the order is dispositive.
On November 17, 2015, TWS Hebei submitted a timely-filed certification indicating that it had no shipments of subject merchandise to the United States during the POR.
The Department preliminarily determines that information placed on the record by the mandatory respondent Xugong,
The statute and the Department's regulations do not address the establishment of a rate to be applied to respondents not selected for individual examination when the Department limits its examination of companies subject to the administrative review pursuant to section 777A(c)(2)(B) of the Act. Generally, the Department looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for respondents not individually examined in an administrative review. Section 735(c)(5)(A) of the Act articulates a preference for not calculating an all-others rate using rates which are zero,
The Department's change in policy regarding conditional review of the
The Department is conducting this review in accordance with section 751(a)(1)(B) and 751(a)(2)(A) of the Act. Export and constructed export prices were calculated in accordance with sections 772(a) and (b) of the Act. Because the PRC is a nonmarket economy within the meaning of section 771(18) of the Act, normal value (“NV”) has been calculated in accordance with section 773(c).
For a full description of the methodology underlying our conclusions,
The Department preliminarily determines that the following weighted-average dumping margins exist for the period September 1, 2014, through August 31, 2015:
Additionally, the Department preliminarily determines that GTS, Aeolus Tyre CO., Ltd., and Tianjin Leviathan International Trade Co., Ltd., to be a part of the PRC-wide entity.
The Department intends to disclose the calculations used in our analysis to parties in this review within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
Interested parties may submit case briefs within 30 days after the date of publication of these preliminary results of review in the
Any interested party may request a hearing within 30 days of publication of this notice.
The Department intends to issue the final results of this administrative review, which will include the results of our analysis of all issues raised in the case briefs, within 120 days of publication of these preliminary results in the
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
For assessment purposes, the Department applied the assessment rate calculation method adopted in
Pursuant to the Department's practice, for entries that were not reported in the U.S. sales databases submitted by companies individually examined during the administrative review, the Department will instruct CBP to liquidate such entries at the PRC-wide rate. Additionally, if the Department determines that an exporter had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number (
The following cash deposit requirements will be effective upon publication of the final results of this review for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) For the companies listed above that have a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during the POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In response to a request from SEAH Steel VINA Corporation (SSV), the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty (AD) order on certain oil country tubular goods (OCTG) from the Socialist Republic of Vietnam (Vietnam) for the period (POR) February 25, 2014, through August 31, 2015. The Department preliminarily determines that SSV did not sell subject merchandise in the United States at prices below normal value (NV) during the period of review (POR). Interested parties are invited to comment on these preliminary results.
Effective October 14, 2016.
Fred Baker, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone 202-482-2924.
On November 9, 2015, the Department initiated an administrative review of the
The merchandise covered by the order is certain oil country tubular goods (OCTG).
The merchandise subject to the order is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7304.29.10.10, 7304.29.10.20, 7304.29.10.30, 7304.29.10.40, 7304.29.10.50, 7304.29.10.60, 7304.29.10.80, 7304.29.20.10, 7304.29.20.20, 7304.29.20.30, 7304.29.20.40, 7304.29.20.50, 7304.29.20.60, 7304.29.20.80, 7304.29.31.10, 7304.29.31.20, 7304.29.31.30, 7304.29.31.40, 7304.29.31.50, 7304.29.31.60, 7304.29.31.80, 7304.29.41.10, 7304.29.41.20, 7304.29.41.30, 7304.29.41.40, 7304.29.41.50, 7304.29.41.60, 7304.29.41.80, 7304.29.50.15, 7304.29.50.30, 7304.29.50.45, 7304.29.50.60, 7304.29.50.75, 7304.29.61.15, 7304.29.61.30, 7304.29.61.45, 7304.29.61.60, 7304.29.61.75, 7305.20.20.00, 7305.20.40.00, 7305.20.60.00, 7305.20.80.00, 7306.29.10.30, 7306.29.10.90, 7306.29.20.00, 7306.29.31.00, 7306.29.41.00, 7306.29.60.10, 7306.29.60.50, 7306.29.81.10, and 7306.29.81.50.
The merchandise subject to the order may also enter under the following HTSUS item numbers: 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.39.00.36, 7304.39.00.40, 7304.39.00.44, 7304.39.00.48, 7304.39.00.52, 7304.39.00.56, 7304.39.00.62, 7304.39.00.68, 7304.39.00.72, 7304.39.00.76, 7304.39.00.80, 7304.59.60.00, 7304.59.80.15, 7304.59.80.20, 7304.59.80.25, 7304.59.80.30, 7304.59.80.35, 7304.59.80.40, 7304.59.80.45, 7304.59.80.50, 7304.59.80.55, 7304.59.80.60, 7304.59.80.65, 7304.59.80.70, 7304.59.80.80, 7305.31.40.00, 7305.31.60.90, 7306.30.50.55, 7306.30.50.90, 7306.50.50.50, and 7306.50.50.70.
While the HTSUS subheadings above are provided for convenience and customs purposes, the written description is dispositive. A full description of the scope of the order is contained in the Preliminary Decision Memorandum.
The Department conducted this review in accordance with sections 751(a)(1)(B) and 751(a)(2)(A) of the Tariff Act of 1930, as amended (the Act). Constructed export prices have been calculated in accordance with section 772(b) of the Act. Because Vietnam is a non-market economy (NME) within the meaning of section 771(18) of the Act, NV has been calculated in accordance with section 773(c) of the Act.
For a full description of the methodology underlying our conclusions,
In the
The Department's policy regarding conditional review of the Vietnam-wide entity applies to this administrative review.
The Department preliminarily determines that the following weighted-average dumping margin exists for the period February 25, 2014, through August 31, 2015:
The Department will disclose the calculations used in our analysis to parties in this review within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
Interested parties may submit case briefs within 30 days after the date of publication of these preliminary results of review in the
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance within 30 days of the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues parties intend to discuss. Issues raised in the hearing will be limited to those raised in the respective case and rebuttal briefs. If a request for a hearing is made, the Department intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a date and time to be determined.
The Department intends to issue the final results of this administrative review, which will include the results of our analysis of all issues raised in the case briefs, within 120 days of publication of these preliminary results in the
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
For assessment purposes, the Department applied the assessment rate calculation method adopted in
The following cash deposit requirements will be effective upon publication of the final results of this review for shipments of the subject merchandise from the Vietnam entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) For the companies listed above that have a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during the POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
These preliminary results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain oil country tubular goods (OCTG) from the Republic of Korea (Korea). The period of review (POR) is July 18, 2014, through August 31, 2015. The Department preliminarily determines that the producers or exporters subject to the review, including the mandatory respondents NEXTEEL Co. Ltd. (NEXTEEL) and SeAH Steel Corporation (SeAH), made sales of subject merchandise at less than normal value. We invite interested parties to comment on these preliminary results.
Effective October 14, 2016.
Victoria Cho or Deborah Scott, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5075 or (202) 482-2657, respectively.
On September 1, 2015, we published in the
The merchandise covered by the order is certain OCTG, which are hollow steel products of circular cross-section, including oil well casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, regardless of end finish (
The Department is conducting this administrative review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Export price and constructed export price are calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act.
For a full description of the methodology underlying our conclusions,
Among the companies under review, certain companies properly filed statements reporting that they made no shipments of subject merchandise to the United States during the POR.
For a full explanation of the Department's analysis,
The statute and the Department's regulations do not address the establishment of a rate to be applied to companies not selected for examination when the Department limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, the Department looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a market economy investigation, for guidance when calculating the rate for companies which were not selected for individual examination in an administrative review. Under section 735(c)(5)(A) of the Act, the all-others rate is normally “an amount equal to the weighted- average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or
In this review, we have preliminarily calculated weighted-average dumping margins for NEXTEEL and SeAH that are not zero,
The Department preliminarily determines that the following weighted-average dumping margins exist:
The Department intends to further consider allegations of a particular market situation in this proceeding. We invite parties to submit comments and arguments on these allegations no later than 14 days after the date of publication of this notice. Rebuttal comments will be due no later than five days after the deadline for submission of affirmative comments.
We intend to disclose the calculations performed for these preliminary results of review to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Pursuant to 19 CFR 351.309(c), interested parties may submit case briefs no later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed no later than five days after the date for filing case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically
Upon completion of the administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. We intend to issue liquidation instructions to CBP 15 days after publication of the final results of this review.
For any individually examined respondent whose weighted-average dumping margin is not zero or
For entries of subject merchandise during the POR produced by NEXTEEL or SeAH for which the producer did not know its merchandise was destined for the United States or for any respondent for which we have a final determination of no shipments, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
The following cash deposit requirements will be effective upon publication of the notice of final results of this review for all shipments of OCTG from Korea entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for the companies listed in the final results of review, will be equal to the weighted-average dumping margin established in the final results of this administrative review; (2) for merchandise exported by producers or exporters not covered in this review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published from a completed segment for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation but the producer is, the cash deposit rate will be the rate established from a completed segment for the most recent period for the producer of the merchandise; (4) the
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
The Department is issuing and publishing these results in accordance with sections 751(a)(1) and 777(i) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public hearings.
On September 8, 2016, NMFS published a notice of availability of the Draft Environmental Assessment for Amendment 10 to the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP). The purpose of this Draft Amendment is to update Atlantic HMS Essential Fish Habitat (EFH) with recent information following the EFH delineation methodology established in Amendment 1 to the 2006 Consolidated Atlantic HMS FMP (Amendment 1); update and consider new Habitat Areas of Particular Concern (HAPCs) for Atlantic bluefin tuna and sandbar, lemon, and sand tiger sharks based on recent information, as warranted; minimize to the extent practicable the adverse effects of fishing and non-fishing activities on EFH; and identify other actions to encourage the conservation and enhancement of EFH. NMFS announces two public hearing conference calls/webinars to allow opportunities for interested members of the public from all geographic areas to submit verbal comments on Draft Amendment 10.
NMFS will host public hearing conference calls/webinars on November 10, 2016, from 3 to 5 p.m. EST and November 18, 2016, from 10 a.m. to 12 p.m. EST. Written comments on Draft Amendment 10 will be accepted until December 22, 2016.
Two public hearing conference calls/webinars will be conducted. See
Jennifer Cudney or Randy Blankinship at (727) 824-5399.
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) includes provisions concerning the identification and conservation of EFH (16 U.S.C. 1801
In addition to identifying and describing EFH for managed fish species, a review of EFH must be completed every 5 years, and EFH provisions must be revised or amended, as warranted, based on the best available scientific information. NMFS announced the initiation of this review and solicited information for compilation for the draft review from the public in a
On September 8, 2016 (81 FR 62100), NMFS published a notice of availability of the Draft Environmental Assessment for Amendment 10 to the 2006 Consolidated Atlantic HMS FMP. Specific actions analyzed included the update and revision of existing HMS EFH, as warranted; modification of existing HAPCs or designation of new HAPCs for bluefin tuna and sandbar, lemon, and sand tiger sharks, as warranted; and analysis of fishing and non-fishing impacts on EFH by considering environmental and management changes and new information since 2009.
NMFS will conduct two public hearing conference calls/webinars to allow members of the public from all geographic areas to submit verbal comments on Draft Amendment 10. To participate in those calls, use the following information:
Participants are strongly encouraged to log/dial in 15 minutes prior to the meeting to allow time to address any technical issues. NMFS will show a brief presentation via webinar followed by public comment. To participate in the webinars online, enter your name and email address, and click the “JOIN” button. Participants that have not used WebEx before will be prompted to download and run a plug-in program that will enable them to view the webinar. Presentation materials and other supporting information will be posted on the HMS Web site at
The public is reminded that participants at public hearings and on conference calls must conduct themselves appropriately. At the beginning of the conference call, a representative of NMFS will explain the ground rules (all comments are to be directed to the agency on the proposed action; attendees will be called to give their comments in the order in which they registered to speak; each attendee will have an equal amount of time to speak; and attendees should not interrupt one another). The NMFS representative will attempt to structure the meeting so that all attending members of the public will be able to comment, if they so choose, regardless of the controversial nature of the subject matter. If attendees do not respect the ground rules, they will be asked to leave the conference call.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of vendor to provide fishing year 2017 cage tags.
NMFS informs surfclam and ocean quahog individual transferable quota (ITQ) allocation holders that they will be required to purchase their fishing year 2017 (January 1, 2017-December 31, 2017) cage tags from the National Band and Tag Company. The intent of this notice is to comply with regulations for the Atlantic surfclam and ocean quahog fisheries and to promote efficient distribution of cage tags.
Anna Macan, Fishery Management Specialist, (978) 281-9165; fax (978) 281-9161.
The Federal Atlantic surfclam and ocean quahog fishery regulations at 50 CFR 648.77(b) authorize the Regional Administrator of the Greater Atlantic Region, NMFS, to specify in the
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
NMFS has issued, in response to a request from Neptune LNG LLC (Neptune), an authorization to take marine mammals, by harassment, incidental to maintenance, repair, and decommissioning activities at a liquefied natural gas (LNG) deepwater port (Port) off the coast of Massachusetts.
An electronic copy of the application, proposed IHA
Effective October 7, 2016 through October 6, 2017.
Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427-8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
On May 28, 2016, NMFS received an application from Neptune for the taking of marine mammals incidental to maintenance, repair, and decommissioning of its Port, Massachusetts Bay. NMFS determined the application was adequate and complete on August 11, 2016.
Take of marine mammals may occur from the use of bow and stern thrusters on two types of dynamic positioning (DP) vessels while docking, undocking, and occasional weathervaning (turning of a vessel at anchor from one direction to another under the influence of wind or currents) during Port maintenance, repair, and decommissioning. Decommissioning will occur for up to 70 days between May 1 and November 30, 2017. Unscheduled maintenance and repair work may occur prior to decommissioning, if needed, and last up to 14 days. To facilitate maintenance, repair, and decommissioning work, DP vessels will operate bow and stern thrusters at Neptune's north and south buoy and hot tap. Take, by Level B harassment only, of individuals of fourteen species of marine mammals is anticipated from this specific activity (Table 1). Take of marine mammals from actual maintenance, repair and decommissioning work (
NMFS has issued several incidental harassment authorizations for the take, by Level B harassment only, of marine mammals to Neptune. NMFS issued a one-year IHA in June 2008 for the construction of the Port (73 FR 33400; June 12, 2008). NMFS issued a second one-year IHA to Neptune for the completion of construction and beginning of Port operations on June 26, 2009 (74 FR 31926; July 6, 2009). NMFS issued a third 1-year IHA (75 FR 41440; July 16, 2010) for ongoing operations followed by a five-year rulemaking and Letters of Authorization (76 FR 34157; June 13, 2011) which expired on July 10, 2016. Although Neptune intended to operate the Port for over 25 years, changes in the natural gas market have resulted in the company halting production operations. During the period of this proposed IHA, Neptune intends to decommission the Port in its entirety and conduct any unscheduled maintenance and repairs, if needed, prior to decommissioning.
The Port consists of two mooring and unloading buoys separated by approximately 2.1 mi (3.4 km) (also known as the north and south buoy) and a pipeline that was meant to receive natural gas from “shuttle and regasification vessels” (SRVs) through a flexible riser that connects to a 24-inch (in) subsea flowline and ultimately into a 24-in gas transmission line. A hot tap/transmission manifold valve (herein after “hot tap”) unit used to control gas flow from the Algonquin pipeline to Neptune's gas transmission line is located inshore of the buoys. Neptune ceased operations of the Port prior to any commercial natural gas deliveries to the New England region and has decided to decommission the Port; therefore, equipment must be removed or safely abandoned in place. To conduct this work (and any maintenance or repair that may be required prior to decommissioning), DP vessels would transit to and maintain position at the north and south buoys and hot tap.
The Port is located within Massachusetts Bay approximately 22 miles (mi) (35 kilometers [km]) northeast of Boston, Massachusetts. It is located west (
Any unscheduled maintenance and repair that may be required would occur prior to decommissioning and last up to two weeks. No maintenance or repair work is currently planned. Decommissioning will commence no earlier than May 1, 2017, and will take up to 70 days.
The notice of proposed IHA (81 FR 58478; August 25, 2016) contains a detailed description of the proposed activities, including the type of DP vessels planned for use and associated thruster operation procedures. That information has not changed and is not repeated here.
A notice of Proposed IHA was published in the
All of the public comment letters received are available on the internet at:
A description of marine mammal species authorized to be taken incidental to DP vessel thruster use, including brief introductions to the species, relevant stock status, distribution and local occurrence, and population trends and threats, was provided in the
The
NMFS concluded any impacts from Neptune's maintenance, repair, and decommissioning activities to marine mammal habitat are expected to be minor and not cause significant or long-term consequences for individual marine mammals or populations. A description of effects on marine mammal habitat from the specific activity is described in detail in the
In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant).
The IHA contains a number of mitigation measures designed to minimize the risk of marine mammal vessel interaction and exposure to elevated noise levels. These measures resulted from extensive coordination between Neptune, NMFS OPR, and the Stellwagen Bank NMS during issuance of previous incidental take authorizations. The mitigation measures include, but are not limited to, reducing vessel speed to four knots and delaying departures from the buoys or hot tap when a whale is visibly observed within 1,000 m or acoustically detected on the two closest passive acoustic monitoring buoys; ceasing vessel movement or idling and reducing thruster power to minimal safe operating power when a whale is observed within 500 m of the vessel; ceasing vessel movement or idling and reducing thruster power to minimal safe operating power when a non-whale species is observed within 100 m of the vessel; not transiting from shore to the project site during nighttime or when visibility is reduced below 1,000 m; and abiding by all reporting and vessel operation requirements contained with the North Atlantic right whale ship strike rule (73 FR 60173; October 10, 2008). A complete list of the mitigation measures can be found within the IHA posted on NMFS Web site
NMFS has carefully evaluated the applicant's mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Based on our evaluation of the applicant's proposed measures, as well
In order to issue an ITA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
1. An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;
2. An increase in our understanding of how many marine mammals are likely to be exposed to levels of continuous noise from use of a DP vessel thruster that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS;
3. An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:
• Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);
• Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);
• Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;
4. An increased knowledge of the affected species; and
5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
The proposed
As part of the IHA, Neptune is required to submit an annual report to NMFS containing information on marine mammal takes and behavior and any mitigation actions taken. Neptune must submit a draft report on all monitoring conducted under the IHA within ninety calendar days of the completion of marine mammal and acoustic monitoring or sixty days prior to the issuance of any subsequent IHA for this project, whichever comes first. A final report shall be prepared and submitted within thirty days following resolution of comments on the draft report from NMFS. The information required in the report is provided in the
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
When Neptune's mitigation is considered in combination with the fact that marine mammals would not be expected to remain around the stationary DP vessel for the duration needed to be exposed to sound levels that reach or exceed Level A harassment thresholds, NMFS believes that injury is unlikely.
As described in the proposed IHA
In August 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing, which established new thresholds for predicting auditory injury, which equates to Level A harassment under the MMPA. In the August 4, 2016,
In the Guidance, acoustic thresholds are presented as cumulative sound exposure levels (SEL
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). The lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, except where otherwise identified, the discussion of our analyses applies to all the species listed in Table 2 given that the anticipated effects of this project on marine mammals are expected to be relatively similar in nature. Where there is information about specific impacts to, or about the size, status, or structure of, any species or stock that would lead to a different analysis for this activity, species-specific factors are identified and analyzed.
In making a negligible impact determination, NMFS considers:
• The number of anticipated injuries, serious injuries, or mortalities;
• The number, nature, and intensity, and duration of Level B harassment; and
• The context in which the takes occur (
• The status of stock or species of marine mammals (
• Impacts on habitat affecting rates of recruitment/survival; and
• The effectiveness of monitoring and mitigation measures to reduce the number or severity of incidental take.
The following provides a summary of NMFS' assessment of these items. NMFS does not anticipate, nor does the IHA authorize, injury, serious injury or mortality of marine mammals incidental to the specified activity. For reasons detailed in the
In summary, the taking of marine mammals is anticipated to produce short-term mild behavioral reactions in marine mammals exposed to elevated noise levels and is not reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. Therefore, NMFS has determined the specified activity would have a negligible impact on the affected marine mammal species and stocks.
The authorized takes represent less than one percent of all populations or stocks for which NMFS was able to quantify the estimated percentage, and we have determined that a small fraction of affected killer whales and grey seal stocks will be taken based on our qualitative assessments (see Table 2 in this document). As such, we find the numbers of marine mammals estimated to be taken are small proportions of the total populations of the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, we have determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
On January 12, 2007, NMFS concluded consultation with Maritime Administration (MARAD) and U.S. Coast Guard (USCG) under section 7 of the ESA on the proposed construction and operation of the Neptune LNG facility and issued a Biological Opinion. The finding of that consultation was the construction and operation of the Neptune LNG terminal may adversely affect, but is not likely to jeopardize the continued existence of, North Atlantic right, humpback, and fin whales, and is not likely to adversely affect sperm, sei, or blue whales and Kemp's ridley, loggerhead, green, or leatherback sea turtles. The Biological Opinion concluded decommissioning activities would not likely adversely affect marine mammals; however, the analysis was limited to actual work (
On March 2, 2010, MARAD and USCG sent a letter to NMFS requesting reinitiation of section 7 consultation because MARAD and USCG determined that certain routine planned operations and maintenance activities, inspections, surveys, and unplanned repair work on the Port pipelines and flowlines, as well as any other Port component (including buoys, risers/umbilicals, mooring systems, and sub-sea manifolds), may constitute a modification not previously considered in the 2007 Biological Opinion. On July 12, 2010, NMFS' Northeast Regional Office (now GARFO) issued a Biological Opinion, which concludes the operation, maintenance, and repair of the Port is likely to adversely affect, but is not likely to jeopardize the continued existence of, North Atlantic right, humpback, fin, and sei whales. NMFS reached this conclusion after reviewing the best available information on the status of endangered and threatened species under NMFS jurisdiction, the environmental baseline for the action area, the effects of the action, and the cumulative effects in the action area. The Biological Opinion also considered the effects of incidental take authorizations issued by NMFS to Neptune under the MMPA for the take of marine mammals incidental to Port operation, maintenance, repairs. Again, the Biological Opinion concluded decommissioning activities would not likely adversely affect marine mammals; however, the analysis was limited to actual work (
MARAD and the USCG released a Final EIS/Environmental Impact Report (EIR) for the Port, publishing a notice of availability of the Final EIS/EIR on November 2, 2006 (71 FR 64606). The Final EIS/EIR provides detailed information on the proposed project facilities, construction, operation, and decommissioning activities, and analysis of potential impacts on marine mammals.
NMFS was a cooperating agency in the preparation of the Draft and Final EIS based on a Memorandum of Understanding related to the Licensing of Deepwater Ports entered into by the U.S. Department of Commerce along with 10 other government agencies. On June 3, 2008, NMFS adopted the USCG and MARAD FEIS and issued a separate Record of Decision for previous issuance of authorizations pursuant to sections 101(a)(5)(A) and (D) of the
NMFS has issued an IHA to Neptune for the potential harassment of small numbers of 14 marine mammal species incidental to maintenance, repair, and decommissioning of their Port in Massachusetts Bay], which includes required mitigation, monitoring and reporting measures.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Groundfish Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Tuesday, November 1, 2016 at 10 a.m.
The meeting will be held at the Radisson Airport Hotel, 2081 Post Road, Warwick, RI 02886; phone: (401) 739-3000.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Groundfish Advisory Panel will discuss Framework Adjustment 56 (FW 56) Specifications and Management Measures. They also plan to discuss draft measures and draft impact analysis for FW 56 and make recommendations to the Groundfish Committee. Other business will be discussed as necessary.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Wednesday, November 2, 2016 at 9:30 a.m.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Scallop Advisory Panel will review Framework 28 (FW 28) alternatives and analyses and make final recommendations. FW 28 will set specifications including ABC/ACLs, DAS, access area allocations for LA and LAGC, hard-TAC for NGOM management area, target-TAC for LAGC incidental catch and set-asides for the observer and research programs for fishing year 2017 and default specifications for fishing year 2018. Management measures in FW 28 may include but are not limit to: (1) Measures to restrict the possession of shell stock inshore of 42°20′ N.; (2) Measures to apply spatial management to fishery specifications (ACL flowchart); and (3) Measures to modify the Closed Area I access area boundary, consistent with potential changes to habitat and groundfish mortality closed areas. They will also review and potentially provide input on 2017 scallop work priorities. Other business will be discussed as necessary.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Groundfish Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Wednesday, November 2, 2016 at 9:30 a.m.
The meeting will be held at the Radisson Airport Hotel, 2081 Post Road, Warwick, RI 02886; phone: (401) 739-3000.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Groundfish Committee will receive reports from the Recreational Advisory Panel and Groundfish Advisory Panel. They plan to discuss Framework Adjustment 56 (FW 56) Specifications and Management Measures. They will also discuss draft measures and draft impact analysis for FW 56 and make recommendations on preferred alternatives to the Council. Other business will be discussed as necessary.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801
In January 2011, NMFS implemented a trawl rationalization program, which is a catch share program, for the Pacific Coast Groundfish Limited Entry Trawl Fishery. The program was implemented through Amendments 20 and 21 to the Pacific Coast Groundfish Fishery Management Plan and the corresponding implementing regulations at 50 CFR part 660. Amendment 20 established the trawl rationalization program that consists of: An individual fishing quota (IFQ) program for the shorebased trawl fleet (including whiting and nonwhiting sectors), and cooperative programs for the at-sea mothership and catcher/processor trawl fleets (whiting only). Amendment 21 set long-term allocations for the limited entry trawl sectors of certain groundfish species.
Under the trawl rationalization program, new permits, accounts, endorsements and licenses were established. These consist of: quota share (QS) permits/accounts, vessel accounts, first receiver site licenses, mothership endorsements on certain limited entry trawl permits, mothership catcher vessel endorsements on certain limited entry trawl permits, catcher/processor endorsements on certain
As part of this request, NMFS plans to remove the notary requirement on all of our forms in this collection, which will save time and money for permit, vessel, and license owners.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Thursday, November 3, 2016 at 9:30 a.m.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Scallop Committee will review Framework 28 (FW 28) alternatives and analyses and make final recommendations. FW 28 will set specifications including ABC/ACLs, DAS, access area allocations for LA and LAGC, hard-TAC for NGOM management area, target-TAC for LAGC incidental catch and set-asides for the observer and research programs for fishing year 2017 and default specifications for fishing year 2018. Management measures in FW 28 may include but are not limit to: (1) Measures to restrict the possession of shell stock inshore of 42°20′ N.; (2) Measures to apply spatial management to fishery specifications (ACL flowchart); and (3) Measures to modify the Closed Area I access area boundary, consistent with potential changes to habitat and groundfish mortality closed areas. They will also review and potentially provide input on 2017 scallop work priorities. Other business will be discussed as necessary.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed deletions from the procurement list.
The Committee is proposing to delete products and services previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Comments must be received on or before: November 13, 2016.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202-4149.
For further information or to submit comments contact: Barry S. Lineback, 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.
The following products and services are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Deletions from the Procurement List.
This action deletes products and services from the Procurement List previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202-4149.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
On 9/2/2016 (81 FR 60681-60683), 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:
Office of the Secretary of Defense (OSD), DoD.
Notice of board membership.
This notice announces the appointment of the Department of Defense, Fourth Estate, Performance Review Board (PRB) members, to include the Office of the Secretary of Defense, Joint Staff, Defense Field Activities, U.S Court of Appeals for the Armed Forces, and the following Defense Agencies: Defense Advanced Research Projects Agency, Defense Commissary Agency, Defense Contract Audit Agency, Defense Contract Management Agency, Defense Finance and Accounting Service, Defense Health Agency, Defense Information Systems Agency, Defense Legal Services Agency, Defense Logistics Agency, Defense Prisoners of War/Missing in Action Accounting Agency, Defense Security Cooperation Agency, Defense Threat Reduction Agency, Missile Defense Agency, and Pentagon Force Protection Agency. The PRB shall provide fair and impartial review of Senior Executive Service and Senior Professional performance appraisals and make recommendations regarding performance ratings and performance awards to the Deputy Secretary of Defense.
Laura E. Devlin, Assistant Director for Office of the Secretary of Defense Senior Executive Management Office, Office of the Deputy Chief Management Officer, Department of Defense, (703) 693-8373.
The publication of PRB membership is required by 5 U.S.C. 4314(c)(4). In accordance with 5 U.S.C. 4314(c)(4), the following executives are appointed to the Office of the Secretary of Defense PRB with specific PRB panel assignments being made from this group. Executives listed will serve a one-year renewable term, effective September 27, 2016.
Department of Education (ED), National Center for Education Statistics (NCES)
Notice
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.
Interested persons are invited to submit comments on or before December 13, 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 accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Accreditation Group, Office of Postsecondary Education, U.S. Department of Education.
Call for written third-party comments.
This notice provides information to members of the public on submitting written comments for accrediting agencies currently undergoing review for purposes of recognition by the U.S. Secretary of Education. This solicitation of third-party comments concerning the performance of accrediting agencies under review by the Secretary is required by § 496(n)(1)(A) of the Higher Education Act (HEA) of 1965, as amended.
Herman Bounds, Director, Accreditation Group, Office of Postsecondary Education, U.S. Department of Education, 400 Maryland Avenue SW., Room 6C115, Washington, DC 20202, telephone: (202) 453-7615, or email:
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(3) The limitation on ACCJC's authority to approve single baccalaureate programs within the scope of accreditation of previously accredited institutions, as outlined in the April 5, 2016 letter from the senior Department official, (4) Review under 34 CFR 602.33.
Missouri State Board of Nursing.
Submission of written comments regarding a specific accrediting agency or state approval agency under review: Written comments about the recognition of a specific accrediting or State agency must be received by November 14, 2016, in the
Only material submitted by the deadline to the email address listed in this notice, and in accordance with these instructions, become part of the official record concerning agencies scheduled for review and are considered by the Department and NACIQI in their deliberations.
20 U.S.C. 1099b.
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j. Mr. Ruger filed his request to use the Traditional Licensing Process on May 23, 2016. Mr. Ruger provided public notice of this request, along with a Pre-Application Document (PAD), on August 15, 2016. In a letter issued on October 6, 2016, the Director of the Division of Hydropower Licensing
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service and NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, part 402; and NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920. We are also initiating consultation with the New Hampshire 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. Mr. Ruger filed a PAD, including a proposed process plan and schedule, with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
m. 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 (
n. The licensee states his unequivocal intent to submit an application for a subsequent license for Project No. 10934. Pursuant to 18 CFR 16.8, 16.9, and 16.10 each application for a subsequent 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 April 30, 2019.
o. Register online at
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j. Puerto Rico Electric Power Authority filed its request to use the Traditional Licensing Process on August 11, 2016. Puerto Rico Electric Power Authority provided public notice of its request on August 11, 2016. In a letter dated October 7, 2016, the Director of the Division of Hydropower Licensing approved Puerto Rico Electric Power Authority's request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402; and NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920. We are also initiating consultation with the Puerto Rico 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 the Puerto Rico Electric Power Authority as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act and section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act; and consultation pursuant to section 106 of the National Historic Preservation Act.
m. Puerto Rico Electric Power Authority 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. 663. 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 August 20, 2019.
p. Register online at
The Federal Energy Regulatory Commission (Commission) hereby gives
The above-referenced meeting will be via web conference and teleconference.
The above-referenced meeting is open to stakeholders.
Further information may be found at:
The above-referenced meeting will be via web conference and teleconference.
The above-referenced meeting is open to stakeholders.
Further information may be found at:
The above-referenced meeting will be via web conference and teleconference.
The above-referenced meeting is open to stakeholders.
Further information may be found at:
The above-referenced meeting will be via web conference and teleconference.
The above-referenced meeting is open to stakeholders.
Further information may be found at:
The discussions at the meetings described above may address matters at issue in the following proceedings:
For more information, contact James Eason, Office of Energy Market Regulation, Federal Energy Regulatory Commission at (202) 502-8622 or
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j. Aclara Meters, LLC filed its request to use the Traditional Licensing Process on August 31, 2016. Aclara Meters, LLC provided public notice of its request on August 25, 2016. In a letter dated October 6, 2016, the Director of the Division of Hydropower Licensing approved the Aclara Meters, LLC's request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service and NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402 and implementing regulations at 50 CFR 600.920. We are also initiating consultation with the New Hampshire Division of Historical Resources, the State Historic Preservation Office (SHPO), 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 Aclara Meters, LLC 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. Aclara Meters, LLC 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. 3820-011. 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 August 31, 2019.
p. Register online at
Environmental Protection Agency (EPA).
Notification of public teleconference and public comment.
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, the U.S. Environmental Protection Agency hereby provides notice that the Board of Scientific Counselors (BOSC) Executive Committee will host a public teleconference convening on November 1, 2016, from 1:00 p.m. to 5:00 p.m. Eastern Time. The primary discussion will be on ORD's Cross-Cutting Research Roadmaps: Environmental Justice, Climate Change, Nitrogen and Children's Environmental Health. There will also be an update on social science and program evaluation. The public is invited to provide comment from 1:25 p.m. to 1:35 p.m. Eastern Time. For information on registering to participate on the teleconference or to provide public comment, please see the
The BOSC Executive Committee meeting will be held on November 1, 2016. All times noted are Eastern Time and are approximate. To participate on the teleconference you must register at the following site:
Questions or correspondence concerning the meeting should be directed to Tom Tracy, Designated Federal Officer, Environmental Protection Agency, by mail at 1200 Pennsylvania Avenue NW., MC 8104 R, Washington, DC 20460; by telephone at 202-564-6518; by fax at 202-565-2911; or via email at
The Charter of the BOSC states that the advisory committee shall provide independent advice to the Administrator on technical and management aspects of the ORD's research program. Additional information about the BOSC is available at:
Environmental Protection Agency (EPA).
Notification of public meeting and public comment.
The U.S. Environmental Protection Agency, Office of Research and Development (ORD), gives notice that the Board of Scientific Counselors (BOSC) Sustainable and Healthy Communities (SHC) Subcommittee will convene for a public meeting. Subcommittee deliberations will focus on Topic 3 of the ORD/SHC research program, which includes contaminated sites and sediments, environmental releases of oils and fuels, and sustainable materials management. Meeting documents are available for viewing and downloading at
The meeting will be held on Wednesday, November 2, 2016, from 12:30 p.m. to 6:30 p.m.; Thursday, November 3, 2016, from 8:30 a.m. to 5:45 p.m.; and Friday, November 4, 2016, from 8:00 a.m. until 2:00 p.m. All times noted are Eastern Time. In-person attendees should preregister by October 25, 2016, using the Eventbrite Web site:
The meeting will be held at the EPA's Andrew W. Breidenbach Environmental Research Center (AWBERC), 26 W. Martin Luther King Drive, Rooms 130/138, Cincinnati Ohio 45268.
The Designated Federal Officer (DFO) via mail at: Jace Cujé, Mail Code 8104R, Office of Science Policy, Office of Research and Development, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; via phone/voice mail at: (202) 564-1795; via fax at: (202) 565-2911; or via email at:
The BOSC was established by the EPA to provide advice, information, and recommendations regarding the ORD research programs. The BOSC is federal advisory committee chartered under the Federal Advisory Committee Act (FACA), 5 U.S.C., App. 2. Pursuant to FACA and EPA policy, notice is hereby given that the BOSC SHC Subcommittee will hold a public meeting to deliberate on ORD/SHC research program, Topic 3, which includes contaminated sites and
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The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at
Responsible Agency: Office of Federal Activities, General Information (202) 564-7146 or
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:
The U.S. Department of the Interior's Bureau of Reclamation and the Department of the Interior's National Park Service are joint lead agencies for the above project.
The U.S. Marine Corps and the U.S. Department of the Interior's Bureau of Reclamation are joint lead agencies of the above project.
The U.S. Department of Transportation's Federal Aviation Administration (FAA) has adopted the U.S. Navy's FEIS # 20150355, filed with the USEPA 12/28/2015. FAA was a cooperating agency on the project. Recirculation of the document is not necessary under Section 1506.3 of the CEQ Regulations.
Federal Election Commission.
999 E Street NW., Washington, DC.
This meeting will be closed to the public.
Compliance matters pursuant to 52 U.S.C. 30109. Matters concerning participation in civil actions or proceeding, or arbitration. Information the premature disclosure of which would be likely to have a considerable adverse effect on the implementation of a proposed Commission action.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Federal Maritime Commission.
October 19, 2016; 10:00 a.m.
800 N. Capitol Street NW., First Floor Hearing Room, Washington, DC.
The first portion of the meeting will be held in Open Session; the second in Closed Session.
1. Briefing by Chairman Cordero on TOC 2016 Conference.
2. Briefing on Consultative Shipping Group Meetings.
3. Briefing by Commissioner Maffei on International Maritime Organization and European Maritime Law Organisation.
1. Staff Briefing on Hanjin Shipping Bankruptcy and Shipping Disruptions.
2. Staff Briefing on Pending Third-Party Audit of PIERPass under the West Coast MTO Discussion Agreement (FMC Agreement 201143).
Rachel E. Dickon, Assistant Secretary, (202) 523-5725.
10:00 a.m., Friday, October 21, 2016.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW., Washington, DC 20004 (enter from F Street entrance).
Open.
The Commission will consider and act upon the following in open session:
Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).
Emogene Johnson (202) 434-9935/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the complaint and the terms of the consent orders—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before November 7, 2016.
Interested parties may file a comment at
Robert Canterman (202-326-2107), Bureau of Competition, 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing consent orders to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before November 7, 2016. Write “St. Cloud Medical Group/CentraCare Health, File No. 1610096—Consent Agreement” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “St. Cloud Medical Group/CentraCare Health, File No. 1610096—Consent Agreement” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
The Federal Trade Commission has accepted, subject to final approval, an Agreement Containing Consent Orders (“Consent Agreement”) from CentraCare Health that is designed to mitigate the anticompetitive effects that would result from CentraCare's acquisition of St. Cloud Medical Group, P.A. (“SCMG”), the two largest providers of adult primary care, pediatric, and obstetric/gynecological (“OB/GYN”) services in the St. Cloud, Minnesota area. The Commission's willingness to accept this Consent Agreement is premised on the fact that SCMG is a financially failing physician practice group that has been unable to find an alternative purchaser for the entire practice as well as concerns regarding disruptions to patient care and possible physician shortages.
On February 29, 2016, CentraCare entered a definitive agreement to acquire all outstanding shares of stock in SCMG (“the Acquisition”). Under the terms of the Acquisition, CentraCare is to directly employ all of SCMG's physicians and advanced practice providers (“APPs”). The Commission's Complaint alleges that the Acquisition, if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, by substantially lessening competition for the provision of adult primary care, pediatric, and OB/GYN services in St. Cloud, Minnesota.
As the Complaint alleges, however, SCMG has recently lost its sole remaining line of credit and appears unlikely to be able to improve its financial condition. Physicians are leaving the group, and there is compelling evidence that others will depart the practice (and potentially the St. Cloud area) if the Acquisition is not consummated. Such physician departures would cause an immediate decline in revenues that could further destabilize the group. Although SCMG made a good-faith, but ultimately unsuccessful, multi-year effort to find an alternative buyer for the entire medical group, one local provider has recently expressed interest in employing a subset of the group, and other smaller, independent practices in the St. Cloud area have indicated that they also would consider hiring some SCMG physicians.
In light of this interest, the proposed Consent Agreement is designed to facilitate former SCMG physicians finding alternate local employment by suspending enforcement of any non-compete provisions against any adult primary care, pediatric, or OB/GYN physician from SCMG to allow up to 14 such physicians to depart for another St. Cloud area practice. It also encourages the creation of new competitors and the strengthening of smaller competitors by requiring CentraCare to provide sizeable departure payments to the first five physicians who leave CentraCare either to create a new medical practice or to join a small third-party medical practice in the St. Cloud area.
The Consent Agreement includes an Order to Suspend Enforcement of CentraCare Non-Competes and Maintain Assets, which is final immediately, and a Decision and Order, which is subject to the Commission's final approval. The Consent Agreement has been placed on the public record for 30 days to receive comments from interested persons. Comments received during this period
The purpose of this analysis is to facilitate public comment on the Consent Agreement. The analysis is not intended to constitute an official interpretation of the Consent Agreement or to modify its terms in any way. Further, the Consent Agreement has been entered into for settlement purposes only and does not constitute an admission by Respondent that it violated the law or that the facts alleged in the Complaint (other than jurisdictional facts) are true.
CentraCare is a non-profit organization providing healthcare services through its owned hospitals, medical clinics, pharmacies, nursing homes, and home health operations throughout central Minnesota. CentraCare is the parent entity to CentraCare Clinic, a multi-specialty physician practice employing family medicine, internal medicine, pediatric, and OB/GYN physicians, among other specialists. CentraCare Clinic has 16 locations across central Minnesota, with five of those offices located within 20 miles of St. Cloud. CentraCare Clinic is the largest provider of adult primary care, pediatric, and OB/GYN services in the St. Cloud area, with approximately 102 adult primary care physicians, 28 pediatricians, and 25 OB/GYNs.
SCMG is a physician-owned multi-specialty medical clinic that operates four clinics in and around St. Cloud. SCMG's 40 physicians mainly provide family medicine, pediatrics, and OB/GYN services, but SCMG also offers surgical, occupational medicine, and rehabilitation services. SCMG also employs approximately 20 APPs.
The Complaint alleges that the proposed Acquisition will substantially increase CentraCare's market share in the St. Cloud area for the provision of adult primary care, pediatric, and OB/GYN services to commercially insured patients. According to the Complaint, by eliminating SCMG as a potential alternative in the St. Cloud area, the Acquisition likely will increase CentraCare's bargaining power vis-à-vis commercial health plans, allowing CentraCare to increase reimbursement rates and to secure more favorable terms. In addition, the Complaint alleges that the Acquisition likely will result in the loss of non-price competition between CentraCare and SCMG that currently results in quality and service benefits to patients. The Complaint further alleges that competition eliminated by the Acquisition is unlikely to be sufficiently replaced in a timely manner by other providers entering the market. The Complaint recognizes, however, that SCMG is unlikely to survive on its own, and that, despite a good-faith search, it has not identified an alternative buyer for the entire group.
The goal of the Consent Agreement is to mitigate the competitive effects of the Acquisition by preserving, to the extent possible, competition for adult primary care, pediatric, and OB/GYN services in the St. Cloud area. At least one local provider may be a viable alternative purchaser to CentraCare for a portion of the practice in that they have the capacity and the desire to employ some SCMG physicians. Likewise, some SCMG physicians appear interested in these opportunities. Those parties need additional time to pursue such an arrangement, and other interested local providers looking to add physicians may be identified during this time as well.
The Commission believes that the Consent Agreement presents the best opportunity to keep the SCMG physicians in the St. Cloud market, ensuring ongoing access to care and minimal disruption for St. Cloud area patients, while allowing local competitive alternatives to CentraCare for the relevant physician services to expand. The Consent Agreement will allow current SCMG physicians to accept alternative local employment opportunities post-acquisition without the risk of violating non-compete provisions in their employment contracts.
Specifically, the Consent Agreement provides that following the issuance of a final Decision and Order and during the 90-day First Release Period, former SCMG physicians can terminate their employment with CentraCare without penalty if the physician:
(1) Submits notice of an intention to terminate employment with CentraCare to a monitor who has been appointed by the Commission to assist in implementing the Consent Agreement in a manner that assures each physician's confidentiality;
(2) States the intention to continue to practice in the St. Cloud area for at least two years;
(3) Is among the first 14 physicians to submit a notice to terminate employment; and
(4) Leaves employment with CentraCare within 60 days of CentraCare receiving notice from the monitor.
If, at the end of the First Release Period, fewer than eight physicians have notified the monitor of their intent to terminate employment, a Second Release Period will commence. During the Second Release Period, CentraCare must also suspend the non-compete agreements of legacy CentraCare adult primary care, pediatric, and OB/GYN physicians (that is, those who did not come from SCMG) so that these physicians may explore and accept alternate employment opportunities in the St. Cloud area. The Second Release Period will end as soon as the monitor has informed CentraCare that eight physicians have met the requirements to terminate without penalty.
To encourage the creation of new competitors and strengthening of smaller competitors, CentraCare also will deposit $500,000 into an escrow account to be awarded as $100,000 departure payments to the first five physicians who leave CentraCare either to create a new medical practice or to join a third-party medical practice that has five or fewer physicians in the St. Cloud area.
Paragraphs II and III describe the basic terms under which physicians may terminate their employment with CentraCare. They prohibit CentraCare from: (1) Enforcing any non-compete, non-solicitation, or non-interference provisions in their employment agreements; (2) pursuing any breach of contract action for violation of any of these provisions; or (3) taking any retaliatory action against any physician who either leaves under the terms of the Decision and Order or who decides not to leave after exploring other employment as allowed by the Decision and Order. The Decision and Order does not, however, require CentraCare to allow physicians to terminate their employment agreements in a manner other than that specified in the Decision and Order.
Paragraph IV includes a number of provisions to ensure that CentraCare will not take any actions to discourage physicians from exploring opportunities to leave or from leaving CentraCare's employment pursuant to the Decision and Order. In addition, Paragraph
Paragraph V requires CentraCare to give advanced notification for future acquisitions or employment contracts involving certain adult primary care, pediatrics, and OB/GYN services in the St. Cloud area for a period of three years.
Paragraph VI requires CentraCare during the First Release Period to facilitate and not interfere with the search for alternate St. Cloud area employment by former SCMG employees, such as APPs and nurses. Paragraph VI also prohibits CentraCare from attempting to re-hire those employees for a period of two years.
Paragraph VII specifies the rules governing the work of the monitor.
The remaining order provisions are standard reporting requirements to allow the Commission to monitor on-going compliance with the provisions of the Decision and Order.
In addition to the Decision and Order, the Consent Agreement includes an Order to Suspend Enforcement of CentraCare's Non-Competes and Maintain Assets that goes into effect immediately. The purposes of this Order are (1) to permit former SCMG physicians to explore alternative employment opportunities in the St. Cloud area; and (2) to maintain those assets and personnel from the SMCG to make the transition to a different practice as easy as possible.
By direction of the Commission.
I have reason to believe that CentraCare Health System's (CentraCare) acquisition of St. Cloud Medical Group, P.A. (SCMG), if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, by substantially lessening competition for the provision of adult primary care, pediatric, and OB/GYN services in St. Cloud, Minnesota. I also believe the Consent Agreement, subject to final approval, represents the outcome most likely to minimize competitive harm and care disruption to the residents of the St. Cloud area. I write separately because, although it is a close determination, I do not believe SCMG meets the stringent failing firm criteria set forth in the Horizontal Merger Guidelines and case law.
Because of SCMG's financial challenges and facts unique to the SCMG practice structure and management, physicians are leaving the group, and compelling evidence indicates that, absent the acquisition, additional physicians plan to leave the group and possibly the area. This would diminish the competitive significance of SCMG and create potential disruptions to care and possible physician shortages in the St. Cloud area. These circumstances raise serious concerns about the likelihood that the Commission will be able to preserve competition and access to care for patients if it were to prevail in its challenge.
Given this difficult scenario, I agree with my colleagues that the Consent Agreement presents the best opportunity to keep the SCMG physicians in the market, ensure ongoing access to care and minimal disruption for area patients, and permit the expansion of local competitive alternatives to CentraCare for the relevant physician services. Accordingly, I support the Consent Agreement on the basis that it is in the public interest.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Survey of Surveillance Records of Aedes aegypti and Aedes albopictus from 1960 to Present—New—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
The Zika virus response necessitates the collection of county and sub-county level records for Aedes aegypti and Aedes albopictus, the vectors of Zika virus. This information will be used to update species distribution maps for the United States and to develop a model aimed at identifying where these vectors can survive and reproduce. CDC is seeking a six-month OMB clearance to collect information.
In February, 2016, OMB issued emergency clearance for a county-level survey of vector surveillance records (OMB Control No. 0920-1101, expiration date 8/31/2016). The previous survey aimed to describe the current reported distribution of the Zika virus vectors Aedes aegypti and Aedes albopictus. The survey revealed that we are lacking records from recent years of both species from areas where we expect to find Zika vectors based on
As part of the Zika response, efforts to identify Ae. aegypti and Ae. albopictus in the continental U.S. were substantially enhanced during 2016 and funding will be provided to states to continue to enhance surveillance for these vectors. By repeating the survey, we will have a more complete assessment of where these vectors are currently being reported. In the new survey, we will also seek information on locations of the mosquito traps at sub-county spatial scales. Such information will aid in (1) targeting vector control efforts to prevent mosquito-borne Zika virus transmission in the continental U.S. and (2) targeting future vector surveillance efforts.
The purpose of the mosquito surveillance survey is to collect county and sub-county-level records for Aedes aegypti and Aedes albopictus, the vectors of Zika virus. The resulting maps and models will inform the public and policy makers of the known distribution of these vectors, identify gaps in vector surveillance, and target allocation of surveillance and prevention resources.
Respondents will include vector control professionals, entomologists, and public health professionals who will be contacted by email, primarily through listserv(s) of professional organizations. They will be asked for their voluntary participation in a short survey to assess the distribution of Aedes aegypti and Aedes albopictus at county and sub-county spatial scales in the U.S.
This information collection request is authorized by Section 301 of the Public Health Service Act (42 U.S.C. 241). The total estimated annualized number of burden hours is 125. There will be no anticipated costs to respondents other than time.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Application Form and Related Forms for the Operation of the National Death Index (NDI) (OMB No. 0920-0215, Expiration 10/31/2016)—Revision—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
Section 306 of the Public Health Service (PHS) Act (42 U.S.C.), as amended, authorizes that the Secretary of Health and Human Services (HHS), acting through the National Center for Health Statistics (NCHS), shall collect statistics on the extent and nature of illness and disability of the population of the United States. To improve understanding of population health, influences on health, and health outcomes, NCHS compiles data about a wide variety of health indicators. Information can be analyzed by NCHS and other entities to help guide public health and health policy decisions.
The National Death Index (NDI) is a centralized NCHS repository of identifiable information about deaths that have occurred in the United States since 1979. The NDI is compiled from records submitted annually to NCHS by all state vital statistics offices. NCHS maintains the NDI to facilitate medical epidemiology and research. Researchers may request NDI data and services by completing an initial NDI Application Form and submitting records of study subjects for computer matching against the NDI file. Additional forms used for NDI administration include the Repeat Request Form and the Transmittal Form.
The standard search against the NDI file provides the relevant states and dates of death, and the death certificate numbers of deceased study subjects. Using the NDI Plus service, researchers have the option of also receiving cause
CDC requests OMB approval to update the three data collection forms used by NCHS to administer NDI services. The form updates include editorial changes needed to capture current modes of data transfer and service payment options, clarifications to the instructions for NDI applicants, the inclusion of an item to capture any resulting publications, and additional terms and conditions associated with the confidentiality agreement.
OMB approval is requested for three years. There is no cost to respondents except for their time. The total estimated annual burden hours are 507, an increase of 325 hours due to an anticipated increase in both the number of applicants and the average time needed to complete the application form.
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 (the PRA), federal agencies are required to publish notice in the
Comments must be received by December 13, 2016.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
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 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.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the 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 requires federal agencies to publish a 60-day notice in the
1.
2.
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 14, 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 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
1.
2.
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 (the PRA), federal agencies are required to publish notice in the
Comments must be received by December 13, 2016.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
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 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.
This notice sets out a summary of the use and burden associated with the
Under the 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 requires federal agencies to publish a 60-day notice in the
1.
Food and Drug Administration, HHS.
Notice; renewal of advisory committee.
The Food and Drug Administration (FDA) is announcing the renewal of the Dermatologic and Ophthalmic Drugs Advisory Committee by the Commissioner of Food and Drugs (the Commissioner). The Commissioner has determined that it is in the public interest to renew the Dermatologic and Ophthalmic Drugs Advisory Committee for an additional 2 years beyond the charter expiration date. The new charter will be in effect until October 7, 2018.
Authority for the Dermatologic and Ophthalmic Drugs Advisory Committee will expire on October 7, 2016, unless the Commissioner formally determines that renewal is in the public interest.
Jennifer Shepherd, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, email:
Pursuant to 41 CFR 102-3.65 and approval by the Department of Health and Human Services pursuant to 45 CFR part 11 and by the General Services Administration, FDA is announcing the renewal of the Dermatologic and Ophthalmic Drugs Advisory Committee. The committee is a discretionary Federal advisory committee established to provide advice to the Commissioner. The Dermatologic and Ophthalmic Drugs Advisory Committee advises the Commissioner or designee in discharging responsibilities as they relate to helping to ensure safe and effective drugs for human use and, as required, any other product for which the Food and Drug Administration has regulatory responsibility. The Committee reviews and evaluates available data concerning the safety and effectiveness of marketed and investigational human drug products for use in the treatment of dermatologic and ophthalmic disorders and makes appropriate recommendations to the Commissioner of Food and Drugs.
The Committee shall consist of a core of nine voting members including two Chairpersons. Members and the Chairpersons are selected by the Commissioner or designee from among authorities knowledgeable in the fields of dermatology, ophthalmology, internal medicine, pathology, immunology, epidemiology or statistics, and other related professions. Members will be invited to serve for overlapping terms of up to 4 years. Almost all non-Federal members of this committee serve as Special Government Employees. The core of voting members may include one technically qualified member, selected by the Commissioner or designee, who is identified with consumer interests and is recommended by either a
Further information regarding the most recent charter and other information can be found at
This document is issued under the Federal Advisory Committee Act (5 U.S.C. app.). For general information related to FDA advisory committees, please visit us at
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance entitled “Software as a Medical Device (SaMD): Clinical Evaluation.” The draft guidance was prepared under the auspices of the International Medical Device Regulators Forum (IMDRF), formerly the Global Harmonization Task Force. The draft guidance pertains to the conduct of clinical evaluation of Software as a Medical Device (SaMD) and focuses on the general principles of clinical evaluation, which includes establishing the scientific validity, clinical performance, and analytical validity for a SaMD. The draft guidance is intended to provide globally harmonized principles of when and what type of clinical evaluation is appropriate based on the risk of the SaMD. This draft guidance is not final nor is it in effect at this time.
Although you can comment on any guidance at any time (see 21 CFR 10.115 (g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by December 13, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
•
An electronic copy of the guidance document is available for download from the Internet. See the
In recent years, many important initiatives have been undertaken by regulatory authorities and industry associations to promote international harmonization of regulatory requirements. One of the goals of global harmonization is to identify and then reduce differences in regulatory policies among regulatory agencies. IMDRF seeks to advance international harmonization or convergence of medical device regulation.
IMDRF was organized to provide an opportunity for global harmonization initiatives to be developed with input from both regulatory and industry representatives. The current members of the Management Committee of the IMDRF are regulatory officials from Australia (Therapeutic Goods Administration), Brazil (National Health Surveillance Agency), Canada (Health Canada), China (China Food and Drug Administration), European Union (European Commission Directorate-General for Internal Market, Industry, Entrepreneurship and Small and Medium-sized Enterprises), Japan (Pharmaceuticals and Medical Devices Agency and the Ministry of Health, Labour and Welfare), Russia (Ministry of Healthcare), and the United States (U.S. FDA). The World Health Organization and the Asia-Pacific Economic Cooperation Life Sciences Innovation Forum Regulatory Harmonization Steering Committee are Official Observers. The Asian Harmonization Working Party and the Pan American Health Organization are IMDRF Affiliate Organizations.
In September 2016, the IMDRF Management Committee endorsed the draft guidance entitled “Software as a Medical Device (SaMD): Clinical Evaluation” and agreed that the guidance should be made available for public comment. The IMDRF SaMD Working Group (WG) includes representatives from the IMDRF members, as well as members from the Medical Device Regulatory Authorities and Regional Harmonization Initiatives from around the world. The draft guidance is the product of the IMDRF SaMD WG. Comments about this draft will be considered by FDA and the IMDRF SaMD WG.
We welcome comments on all aspects of the draft guidance as well as the following specific issues:
1. Does the document address the intention captured in the introduction/scope or vice versa?
2. Does the document appropriately translate and apply current clinical vocabulary for SaMD?
3. Are there other types of SaMD beyond those intended for non-diagnostic, diagnostic and therapeutic purposes that should be highlighted/considered in the document?
4. Does the document adequately address the relevant clinical evaluation methods and processes for SaMD to generate clinical evidence?
5. Are there other appropriate methods for generating clinical evaluation evidence that are relevant for SaMD beyond those described in the document?
6. Are the recommendations identified in section 7.2 related to the “importance of clinical evidence and expectations” appropriate as outlined for the different SaMD categories?
7. Are the recommendations identified in section 7.3 related to the “importance of independent review” appropriate as outlined for the different SaMD categories?
8. Given the uniqueness of SaMD and the proposed framework—is there any impact on currently regulated devices or any possible adverse consequences?
The draft guidance and the IMDRF comment page are available at
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Software as a Medical Device (SaMD): Clinical Evaluation.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Persons interested in obtaining a copy of the draft guidance may do so by downloading an electronic copy from the Internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
Food and Drug Administration, HHS.
Notice; renewal of advisory committee.
The Food and Drug Administration (FDA) is announcing the renewal of the Antimicrobial Drugs Advisory Committee by the Commissioner of Food and Drugs (the Commissioner). The Commissioner has determined that it is in the public interest to renew the Antimicrobial Drugs Advisory Committee for an additional 2 years beyond the charter expiration date. The new charter will be in effect until October 7, 2018.
Authority for the Antimicrobial Drugs Advisory Committee will expire on October 7, 2016, unless the Commissioner formally determines that renewal is in the public interest.
Lauren Tesh, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, email:
Pursuant to 41 CFR 102-3.65 and approval by the
The Committee shall consist of a core of 13 voting members including the Chair. Members and the Chair are selected by the Commissioner or designee from among authorities knowledgeable in the fields of infectious disease, internal medicine, microbiology, pediatrics, epidemiology or statistics, and related specialties. Members will be invited to serve for overlapping terms of up to four years. Almost all non-Federal members of this committee serve as Special Government Employees. The core of voting members may include one technically qualified member, selected by the Commissioner or designee, who is identified with consumer interests and is recommended by either a consortium of consumer-oriented organizations or other interested persons. In addition to the voting members, the Committee may include one non-voting member who is identified with industry interests.
Further information regarding the most recent charter and other information can be found at
This document is issued under the Federal Advisory Committee Act (5 U.S.C. app.). For general information related to FDA advisory committees, please visit us at
Health Resources and Service Administration (HRSA), Department of Health and Human Services.
Notice of meeting.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, codified at 5 U.S.C. App.), notice is hereby given that a meeting is scheduled for the Advisory Committee on Heritable Disorders in Newborns and Children. This meeting will be open to the public but advance registration is required to ensure sufficient webinar capacity. The registration link is
November 3, 2016, 9:00 a.m. to 5:00 p.m. (Meeting time is tentative.)
November 4, 2016, 9:00 a.m. to 1:00 p.m. (Meeting time is tentative.)
This meeting will be held by webinar only.
Anyone interested in obtaining other relevant information should contact Alaina Harris, Maternal and Child Health Bureau, HRSA, Room 18W66, 5600 Fishers Lane, Rockville, Maryland 20857; email:
The Advisory Committee on Heritable Disorders in Newborns and Children (Committee), as authorized by the Public Health Service Act, Title XI, § 1111 (42 U.S.C. 300b-10), was established to advise the Secretary of the Department of Health and Human Services about the development of newborn screening activities, technologies, policies, guidelines, and programs for effectively reducing morbidity and mortality in newborns and children having, or at risk for, heritable disorders. In addition, the Committee's recommendations regarding additional conditions/inherited disorders for screening that have been adopted by the Secretary are included in the Recommended Uniform Screening Panel and constitute part of the comprehensive guidelines supported by HRSA. Pursuant to section 2713 of the Public Health Service Act, codified at 42 U.S.C. 300gg-13, non-grandfathered health plans are required to cover screenings included in the HRSA-supported comprehensive guidelines without charging a co-payment, co-insurance, or deductible for plan years (
The Committee will hear presentations and discussions on topics related to newborn screening activities, technologies, policies, guidelines, and programs for effectively reducing morbidity and mortality in newborns and children having, or at risk for, heritable disorders. The Committee will also hear updates from the Laboratory Standards and Procedures workgroup, Follow-up and Treatment workgroup, and Education and Training workgroup. Agenda items are subject to changes as priorities indicate. Tentatively, the Committee is expected to review and/or vote on the following: Approving newborn screening surveillance case definitions and whether or not the nominated condition Guanidinoacetate Methyltransferase deficiency should be referred for a full evidence-based review. The Committee will not be voting on a proposed addition of a condition to the Recommended Uniform Screening Panel. The meeting agenda will be available 2 days prior to the meeting on the Committee's Web site:
Members of the public may submit written and/or present oral comments at the meeting. All comments are part of the official Committee record. Advance registration is required to submit written comments and/or present oral comments. Written comments must be submitted by October 19, 2016, 11:59 p.m. Eastern Time in order to be included in the November meeting briefing book. Written comments should identify the individual's name, address, email, telephone number, professional or business affiliation, type of expertise (
Individuals who wish to provide oral comments must register by October 30, 2016, 11:59 p.m. Eastern Time. To ensure that all individuals who have registered to make oral comments can be accommodated, the allocated time may
More information on the Advisory Committee is available at
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects (Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995), HRSA announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, HRSA seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on this ICR must be received no later than December 13, 2016.
Submit your comments to
To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
When submitting comments or requesting information, please include the information request collection title for reference.
Statute requires that THCGME program award recipients report annually on the types of primary care resident approved training programs that the THCs provided for residents, the number of approved training positions for residents, the number of residents who completed their residency training at the end of the academic year and care for vulnerable populations, and any other information as deemed appropriate by the Secretary. The described data collection activities have served to meet this statutory requirement for the THCGME program award recipients in a uniform and consistent manner and have allowed comparisons of this group to other trainees in non-THC programs. GW seeks renewal of these measures with no changes.
HRSA specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Health Resources and Service Administration (HRSA), Department of Health and Human Services, (HHS).
Notice of meeting.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given that a meeting is scheduled for the Centers for Disease Control and Prevention (CDC)/HRSA Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment. This meeting will be open to the public. Information about the CDC/HRSA Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment and the agenda for this meeting can be obtained by contacting LCDR Holly Berilla at (301) 443-9965 or
The meeting will be held on November 16, 2016, from 8:30 a.m. to 5:00 p.m. and November 17, 2016, from 8:30 a.m. to 3:30 p.m.
This meeting will be held in-person and offer virtual access through teleconference and Adobe Connect. The address for the meeting is 5600 Fishers Lane, Rockville, Maryland 20857, Room 5A02 (Pavilion). Parties may access the teleconference by dialing 800-369-1193 and using the public participant code: 7050725. Parties may also access the meeting through Adobe Connect (visual only) by using the following URL:
Anyone requesting information regarding the CDC/HRSA Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment should contact LCDR Holly Berilla, Public Health Analyst, Division of Policy and Data (DPD), HIV/AIDS Bureau (HAB), HRSA, in one of three ways: (1) Send a request to the following address: LCDR Holly Berilla, Public Health Analyst, DPD, HAB, HRSA, 5600 Fishers Lane, 09N164C, Rockville, Maryland 20857; (2) call 301-443-9965; or (3) send an email to
The CDC/HRSA Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment was established under Section 222 of the Public Health Service Act, [42 U.S.C. Section 217a], as amended.
The purpose of the CDC/HRSA Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment is to advise the Secretary, HHS; the Director, CDC; and the Administrator, HRSA regarding objectives, strategies, policies, and priorities for HIV, viral hepatitis, and other STDs; prevention and treatment efforts including surveillance of HIV infection, AIDS, viral hepatitis, and other STDs, and related behaviors; epidemiologic, behavioral, health services, and laboratory research on HIV/AIDS, viral hepatitis, and other STDs; identification of policy issues related to HIV/viral hepatitis/STD professional eduction, patient healthcare delivery, and prevention services; Agency policies about prevention of HIV/AIDS, viral hepatitis and other STDs; treatment, healthcare delivery, and research and training; strategic issues influencing the ability of CDC and HRSA to fulfill their missions of providing prevention and treatment services; programmatic efforts to prevent and treat HIV, viral hepatitis, and other STDs; and support to the Agencies in their developoment of responses to emerging health needs related to HIV, viral hepatitis, and other STDs.
During the November 16-17, 2016, meeting, the CDC/HRSA Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment will discuss and deliberate on areas for evaluation by HRSA/HAB; expansion of national viral hepatitis programs; employment, housing, aging and leadership initiatives geared to people living with HIV/AIDS; and updates from Committee workgroups. Agenda items are subject to change as priorities dictate.
Members of the public will have the opportunity to provide comments. Oral comments will be honored in the order they are requested and may be limited as time allows. Requests to make oral comments or provide written comments to the CDC/HRSA Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment should be sent to LCDR Holly Berilla, using the address and phone number listed above by November 1, 2016. The building at 5600 Fishers Lane, Rockville, MD 20857, requires a security screening on entry. To facilitate access to the building please contact LCDR Holly Berilla at the address and phone number listed above. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify LCDR Holly Berilla at the address and phone number listed above at least 10 days prior to the meeting.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below. This proposed information collection was previously published in the
Comments regarding this information collection are best assured of having their full effect if received within 30-days of the date of this publication.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the: Office of Management and Budget, Office of Regulatory Affairs,
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Dr. Ofelia Olivero, Chief Intramural Diversity Workforce Branch, Center for Cancer Training, NCI, 9609 2W108, Rockville, MD 20850 or call non-toll-free number (240) 276-6890 or Email your request, including your address to:
The National Cancer Institute (NCI), National Institutes of Health, may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 225.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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
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 1-800-927-7588 or send an email to
For more information regarding particular properties identified in this Notice (
Bureau of Land Management, Interior.
Notice.
After withdrawal of protest, the Bureau of Land Management (BLM) is scheduled to lift the stay of filing of plat of survey dated August 24, 2009, and file this plat of survey thirty (30) calendar days from the date of this publication in the BLM Wyoming State Office, Cheyenne, Wyoming. This survey was executed at the request of the National Park Service and is necessary for the management of these lands. The lands surveyed are:
The plat representing the entire record of the survey of Tract No. 37, Township 32 North, Range 3 East, Sixth Principal Meridian, Nebraska, was accepted March 6, 2009.
WY957, Bureau of Land Management, 5353 Yellowstone Road, P.O. Box 1828, Cheyenne, Wyoming 82003.
A person or party who wishes to protest against this survey must file a written notice within thirty (30) calendar days from
Copies of the preceding described plat are available to the public at a cost of $4.20 per plat.
United States International Trade Commission.
October 25, 2016 at 11:00 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agendas for future meetings: None.
2. Minutes.
3. Ratification List.
4. Vote in Inv. Nos. 701-TA-548 and 731-TA-1298 (Final) (Welded Stainless Steel Pressure Pipe From India). The Commission is currently scheduled to complete and file its determinations and views of the Commission on November 7, 2016.
5. Outstanding action jackets: None.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Nite Ize, Inc. on October 6, 2016. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain mobile device holders and components thereof. The complaint names as respondents Shenzhen Youtai Trade Company Limited, d/b/a NoChoice of China; REXS LLC of Lewes, DE; Spinido, Inc. of Brighton, CO; Luo, Qiben, d/b/a Lita International Shop of China; Guangzhou Kuaguoyi E-commerce co., ltd. d/b/a Kagu Culture of China; Shenzhen New Dream Technology Co., Ltd., d/b/a Newdreams of China; Shenzhen Gold South Technology Co., Ltd. d/b/a Baidatong of China; Zhao Chunhui d/b/a Skyocean of China; Sunpauto Co, ltd. of Hong Kong; Wang Zhi Gang d/b/a IceFox of China; Dang Yuya d/b/a Sminiker of China; Shenzhen Topworld Technology Co. d/b/a IdeaPro of Hong Kong; Lin Zhen Mei d/b/a Anson of China; Wu Xuying d/b/a Novoland of China; Shenzhen New Dream Sailing Electronic Technology Co., Ltd. d/b/a MegaDream of China; Zhongshan Feiyu Hardware Technology Co., Ltd d/b/a YouFo of China; Ninghuaxian Wangfulong Chaojischichang Youxian Gongsi Ltd., d/b/a EasybuyUS of China; Chang Lee d/b/a Frentaly of Duluth, GA; Trendbox USA LLC d/b/a Trendbox of Scottsdale, AZ; Timespa d/b/a Jia Bai Nian (Shenzhen) Electronic Commerce Trade CO., LTD, of China; Tontek d/b/a Shenzhen Hetongtai Electronics Co., Ltd., of China; Scotabc d/b/a ShenChuang Opto-electronics Technology Co., Ltd. of China; Tenswall d/b/a Shenzhen Tenswall International Trading Co, Ltd. of La Puente, CA; Luo Jieqiong d/b/a Wekin of China; Pecham d/b/a Baichen Technology Ltd. of Hong Kong; Cyrift d/b/a Guangzhou Sunway E-Commerce LLC. of China; Rymemo d/b/a Global Box, LLC of Dunbar, PA; Wang Guoxiang d/b/a Minse of China; Yuan I d/b/a Bestrix of China; Zhiping Zhou d/b/a Runshion of China; Funlavie of Riverside, CA; Huijukon d/b/a Shenzhen Hui Ju Kang Technology Co. Ltd., of China; Zhang Huajun d/b/a CeeOne of China; EasyAcc/d/b/a Searay LLC., of Newark, DE; Barsone d/b/a Shenzhen Senweite Electronic Commerce Ltd., of China; Oumeiou d/b/a Shenzhen Oumeiou of China; Grando d/b/a Shenzhen Dashentai Network Technology Co., Ltd., of China; Shenzhen Yingxue Technology Co., Ltd. of China; Shenzhen Longwang Technology Co., Ltd., d/b/a LWANG of China; and Hu Peng d/b/a AtomBud of
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to § 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3178”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Pracice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
United States International Trade Commission.
Notice requesting members of the public to submit petitions for duty suspensions and reductions and Commission disclosure forms.
As required by section 3(b)(1) of the American Manufacturing Competitiveness Act of 2016, the Commission is publishing notice requesting members of the public who can demonstrate that they are likely beneficiaries of duty suspensions or reductions to submit petitions for duty suspensions and reductions. Consistent with the statute, the Commission will accept petitions submitted during the 60-day period beginning on October 14, 2016, and ending at 5:15 p.m. EST December 12, 2016. All petitions must be submitted via the Commission's designated secure web portal. At a later date the Commission will publish notice of the opportunity for the public to submit comments on the petitions filed.
October 14, 2016: Opening date for filing petitions for duty suspensions and reductions. December 12, 2016, 5:15 p.m., EST: Closing date and time for filing petitions for duty suspensions and reductions.
All Commission offices are located in the United States International Trade Commission Building, 500 E Street SW., Washington, DC. The public file for this proceeding may be viewed on the Commission's MTB Petition System (MTBPS) at
For general inquiries, contact Jennifer Rohrbach at
The media should contact Peg O'Laughlin, Public Affairs Officer (202-205-1819 or
The Act requires the Commission to submit preliminary and final reports to the House Committee on Ways and Means and the Senate Committee on Finance (Committees) on the petitions received. The reports are to include the Commission's analysis and recommendations regarding the petitions, including whether there is domestic production of the article, whether the estimated loss in revenues due to the duty suspension or reduction does not exceed $500,000, and whether the duty suspension or reduction will be available to any person importing the article. The Commission is required to classify the petitions into categories based on whether (1) the petition meets the requirements for inclusion in a miscellaneous tariff bill; (2) the Commission recommends inclusion in such a bill with specified technical changes, changes in product scope, or adjustment in the amount of duty reduction; (3) the Commission recommends against inclusion in a bill because the petition does not meet the petitioning requirements or the petitioner is not a likely beneficiary; (4) the Commission otherwise recommends not including the petition. The Committees and the Congress will make the final decision regarding the imported articles to be included in a bill.
The Act also requires the U.S. Department of Commerce, with input from U.S. Customs and Border Protection and other Federal agencies, to submit a report to the Commission and to the Committees. This report is to include information related to domestic production and technical changes that are necessary for purposes of administration when articles are presented for importation.
Confidential business information submitted to the Commission in petitions and comments may be disclosed to and/or used by (1) the Commission in calculating the estimated revenue loss required under the Act, which may be based in whole or in part on the estimated values of imports submitted by petitioners in their petitions; or (2) the Commission, its employees, and contract personnel (a) in processing petitions and comments and preparing reports under the American Manufacturing Competitiveness Act of 2016 or (b) in internal investigations, audits, reviews, and evaluations relating to the programs, personnel, and operations of the Commission including under 5
By order of the Commission.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
Advisory Committee for International Science and Engineering (#25104).
November 28, 2016; 8:00 a.m. to 5:00 p.m.; November 29, 2016; 8:00 a.m. to 1:00 p.m.
National Science Foundation, 4121 Wilson Boulevard, Stafford II, Suite 1155.01, Arlington, Virginia 22230.
Part-Open.
Claire Hemingway, National Science Foundation, 4121 Wilson Boulevard, Stafford II, Suite 1155.77, Arlington, Virginia 22230; 703-292-7135.
To provide advice, recommendations and counsel on major goals and policies pertaining to international programs and activities.
The ACRS Subcommittee meeting on Metallurgy & Reactor Fuels scheduled for October 21, 2016 (new date), 8:30 a.m. until 12:00 p.m., has been cancelled.
The notice of this meeting was previously published in the
Information regarding this meeting can be obtained by contacting Christopher Brown, Designated Federal Official (DFO) (Telephone 301-415-7111 or Email:
Nuclear Regulatory Commission.
Standard Review Plan Section Revision; Issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing a final revision to Section 2.0, “Site Characteristics and Site Parameters” of NUREG-0800, “Standard Review Plan (SRP) for the Review of Safety Analysis Reports for Nuclear Power Plants: LWR Edition.”
The effective date of this SRP update is November 14, 2016.
Please refer to Docket ID NRC-2015-0131 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this document using any of the following methods:
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The NRC posts its issued staff guidance on the NRC's external Web page (
Mark Notich, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-3053, email:
On May 27, 2015 (80 FR 30285), the NRC published for public comment a proposed revision of Section 2.0, “Site Characteristics and Site Parameters” of NUREG-0800, “Standard Review Plan (SRP) for the Review of Safety Analysis Reports for Nuclear Power Plants: LWR Edition.” The staff received comments on the draft section. After consideration of comments received on the proposed revision, the NRC staff reformatted guidance for the review of nonsafety-related structures, systems, and components (SSCs) into a tabular format, and separated it from the core review guidance used for review of safety-related SSCs. A summary of comments received and the staff's disposition of the comments are available in a separate document entitled, “Response to Public Comments on Draft Standard Review Plan, Section 2, `Site Characteristics and Site Parameters'” (ADAMS Accession No. ML15279A093).
Section 2 provides guidance to the staff for reviewing applications for a construction permit and an operating license under part 50 of title 10 of the
Issuance of this SRP section revision does not constitute backfitting as defined in 10 CFR 50.109 (the Backfit Rule) nor is it inconsistent with the issue finality provisions in 10 CFR part 52. The NRC's position is based upon the following considerations.
1.
The SRP provides internal guidance to the NRC staff on how to review an application for NRC regulatory approval in the form of licensing. Changes in internal staff guidance are not matters for which either nuclear power plant applicants or licensees are protected under either the Backfit Rule or the issue finality provisions of 10 CFR part 52.
2.
The NRC staff does not intend to impose or apply the positions described in the SRP to existing licenses and regulatory approvals. Hence, the issuance of this SRP—even if considered guidance within the purview of the issue finality provisions in 10 CFR part 52—does not need to be evaluated as if it were a backfit or as being inconsistent with issue finality provisions. If, in the future, the NRC staff seeks to impose a position in the SRP on holders of already issued licenses in a manner that does not provide issue finality as described in the applicable issue finality provision, then the staff must make the showing as set forth in the Backfit Rule or address the criteria for avoiding issue finality as described in the applicable issue finality provision.
3.
Applicants and potential applicants are not, with certain exceptions, protected by either the Backfit Rule or any issue finality provisions under 10 CFR part 52. Neither the Backfit Rule nor the issue finality provisions under 10 CFR part 52—with certain exclusions—were intended to apply to every NRC action that substantially changes the expectations of current and future applicants.
The exceptions to the general principle are applicable whenever an applicant references a 10 CFR part 52 license (
This action is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Standard review plan—final section revision; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing final revisions to Section 13.6.4, “Access Authorization—Operational Program;” Section 13.7, “Fitness-for-Duty;” Section 13.7.1, “Fitness-for-Duty—Operational Program;” Section 13.7.2, “Fitness for Duty—Construction;” and Section 13.6.3, “Physical Security—Operational Program—Early Site Permits and Reactor Siting Criteria;” of NUREG-0800, “Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants: LWR Edition.”
The effective date of these SRP section revisions is November 14, 2016.
Please refer to Docket IDs NRC-2012-0314 for SRP Section 13.6.4, NRC-2013-0149 for SRP Sections 13.7 and 13.7.1, NRC-2014-0099 for SRP Section 13.7.2, and NRC-2014-0101 for SRP Section 13.6.3 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Mark Notich, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-3053; email:
On December 31, 2012 (77 FR 77117), the NRC published for public comment the proposed revision to Section 13.6.4, “Access Authorization—Operational Program” (ADAMS Accession No. ML12125A098). On July 16, 2013 (78 FR 42558), the NRC published for public comment the proposed revision to Section 13.7, “Fitness-for-Duty;” and Section 13.7.1, “Fitness-for-Duty—Operational Program” (ADAMS Accession Nos. ML113250516 and ML113250541, respectively). On May 5, 2014 (79 FR 25627), the NRC published for public comment the proposed revision to Section 13.6.3, “Physical Security—Early Site Permit and Reactor Siting Criteria” (ADAMS Accession No. ML13059A367). Also on May 5, 2014 (79 FR 25628), the NRC published for public comment the proposed revision to Section 13.7.2, “Fitness-for-Duty—Construction” (ADAMS Accession No. ML113270035).
The NRC staff received comments on the proposed revision to SRP Section 13.6.4. A summary of the comments and the NRC staff's disposition of the comments are available in a separate document entitled, “Response to Public Comments on Draft Standard Review Plan (SRP) 13.6.4: Access Authorization—Operational Program” (ADAMS Accession No. ML13270A111). Therefore, the NRC is issuing this revised section of the SRP in final form for use.
The NRC did not receive comments on the proposed revisions to SRP Sections 13.6.3, 13.7, 13.7.1, and 13.7.2. Therefore, the NRC is issuing these revised sections of the SRP in final form for use.
There have been minor editorial changes to these sections since their issuance in proposed form for public comment. Details on the specific changes are included in the redline strikeout documents referenced in Section IV, “Availability of Documents,” of this document.
Issuance of these revised SRP sections does not constitute backfitting as defined in § 50.109 of title 10 of the
1.
The SRP provides guidance to the NRC staff on how to review an application for NRC regulatory approval in the form of licensing. Changes in internal NRC staff guidance are not matters for which either nuclear power plant applicants or licensees are protected under either the Backfit Rule or the issue finality provisions of 10 CFR part 52.
2.
The NRC staff does not intend to impose or apply the positions described in the SRP to existing (already issued) licenses and regulatory approvals. Therefore, the issuance of a final SRP—even if considered guidance that is within the purview of the issue finality provisions in 10 CFR part 52—need not be evaluated as if it were a backfit or as being inconsistent with issue finality provisions. If, in the future, the NRC staff seeks to impose a position in the SRP on holders of already issued licenses in a manner which does not provide issue finality as described in the applicable issue finality provision, then the NRC staff must make the showing as set forth in the Backfit Rule or address the criteria for avoiding issue finality as described in the applicable issue finality provision.
3.
Applicants and potential applicants are not, with certain exceptions, protected by either the Backfit Rule or any issue finality provisions under 10 CFR part 52. This is because neither the Backfit Rule nor the issue finality provisions under 10 CFR part 52—with certain exclusions discussed in the next paragraph—were intended to apply to every NRC action which substantially changes the expectations of current and future applicants.
The exceptions to the general principle are applicable whenever an applicant references a 10 CFR part 52 license (
These SRP section revisions are a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.
The documents identified in the following table are available to interested persons as indicated.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Confirmatory order; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing a confirmatory order to Power Resources, Inc., confirming agreements reached in an alternative dispute resolution mediation session held on September 22, 2016. As part of the agreement, Power Resources, Inc., will conduct annual meetings among key management, radiation safety officer, facility managers, and other appropriate technical personnel to provide assurance that management understands the requirements of a radiation protection program are being met; will provide training which will emphasize the importance of complete and accurate information for all required records, correspondence, and communications with the NRC and its staff; and will have a qualified member of the heath physics staff available at any of its facilities when equipment is being released from a radiologically-controlled are to an unrestricted area.
The confirmatory order was issued on September 30, 2016.
Please refer to Docket ID NRC-2016-0211 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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•
•
John Kramer, Region IV, U.S. Nuclear Regulatory Commission, 1600 E. Lamar Blvd., Arlington, TX 76011-4511; telephone: 817-200-1121; email:
The text of the Order is attached.
For the Nuclear Regulatory Commission.
Power Resources, Inc. (PRI or Licensee), is the holder of Source Material License SUA-1548 issued on May 8, 2001, by the U.S. Nuclear Regulatory Commission (NRC or Commission) pursuant to Part 40 of Title 10 of the
This Confirmatory Order is the result of an agreement reached during an alternative dispute resolution (ADR) mediation session conducted on September 22, 2016.
On June 27, 2014, the NRC's Office of Investigations (OI), initiated an investigation (OI Case No. 4-2014-034) at PRI's North Butte satellite facility. Based on the evidence developed during its investigation, the NRC identified apparent violations of 10 CFR 20.1501, “Surveys and Monitoring—General,” and 10 CFR 40.9, “Completeness and accuracy of information,” as well as, two apparent violations of License Condition 9.3 of License SUA 1548, Amendment 18, dated March 27, 2013, which includes the requirement that the licensee conduct its operations in accordance with Volume 1, Chapter 9, “Management Control Procedures,” of the licensee's application dated May 6, 2003, as amended based on letter dated March 20, 2008. In addition, based on OI's investigative results, the NRC is concerned that willfulness may be associated with the apparent violation involving the failure to maintain accurate records of contamination exit surveys. By letter dated August 24, 2016, the NRC notified PRI of the results of the investigation and provided an opportunity to: (1) Provide a response in writing, (2) attend a
In response to the NRC's offer, PRI requested the use of the NRC's ADR process to resolve differences it had with the NRC. On September 22, 2016, the NRC and PRI met in an ADR session mediated by a professional mediator, arranged through Cornell University's Institute on Conflict Resolution. The ADR process is one in which a neutral mediator, with no decision-making authority, assists the parties in reaching an agreement on resolving any differences regarding the dispute. This Confirmatory Order is issued pursuant to the agreement reached during the ADR process.
During that ADR session, PRI and the NRC reached a preliminary settlement agreement. The NRC recognizes the corrective actions that PRI has already implemented associated with the apparent violations. The elements of the agreement include the following:
Corrective actions taken by PRI include:
A. Problem Evaluation.
1. Completed a prompt apparent cause investigation into the incident, including an assessment of compliance with company procedures and proposed corrective actions. Included appropriate notification of regulatory authorities.
2. Engaged external counsel to conduct an independent investigation of allegations of falsification of survey records. Included appropriate notification of regulatory authorities.
B. Communications.
1. The PRI President issued a written communication to all North Butte employees describing expectations that employees will comply with NRC regulations and license requirements, Cameco code of conduct, and principles of a safety conscious work environment.
2. The PRI President met with employees involved in NRC-regulated activities at each facility, as well as employees at corporate offices that were involved with activities conducted under the license, to discuss management's expectations for employee compliance with NRC and licensee requirements, Cameco code of conduct, ethics, and principles of a safety conscious work environment.
C. Training.
1. Conducted training on “Government Oversight of Uranium Mining,” including discussion of complete and accurate information, deliberate misconduct, and employee protection requirements for all employees at the North Butte facility.
2. Conducted training for supervisory employees regarding enhanced investigative and documentation techniques for issues that have the potential to include employee wrongdoing, including deliberate misconduct, falsification of documents, and harassment, retaliation, and chilling effects at the Smith Ranch, North Butte, and Crow Butte facilities.
3. Conducted training for supervisory employees regarding maintenance of a safety conscious work environment, including employee protection, barriers to a safety conscious work environment, chilling effects, and best practices. The safety conscious work environment training included an interactive discussion of multiple case studies and examples relevant to the PRI operational facilities.
4. Conducted management/supervisor team training on the Cameco Code of Conduct and Ethics at the PRI operational facilities.
5. Conducted immediate refresher training on requirements for free release surveys, contractor training, and documentation of daily monitoring records for the North Butte Mine Manager, Operations Supervisor, and Safety Health Environment and Quality Specialist III.
6. Added training specific to the proper use of daily monitoring records to the PRI annual refresher training and to the new hire/contractor radiation training.
7. Added training on processes involving free release surveys, personnel qualified to perform free release surveys of equipment, and on the use of specific forms to the PRI annual refresher training and new hire/contractor radiation training.
8. To ensure the effectiveness of the training, examination questions regarding free release surveys were added to the test that all personnel must pass in order to work unescorted in radiologically-controlled areas at all PRI facilities.
D. Work Processes.
1. Conducted assessment of processes for initiating and completing inquiries into alleged employee misconduct, including scope, timeliness, and determinations regarding such allegations, and a review of the employee handbook. Made updates as appropriate.
2. Conducted a review of procedures, annual and refresher training, and work processes for revisions and enhancements. Made changes where appropriate. Changes included revised procedures for completing and documenting hazard awareness training, and improvements in the process for completing, documenting, and maintenance-of-records for daily monitoring records.
The elements of the agreement, as signed by both parties, consist of the following:
A. The NRC has concluded that a willful violation of Title 10 of the
B. Within 12 months of the issuance date of the Confirmatory Order and on an annual basis thereafter, PRI will conduct a meeting among key management, radiation safety officer, facility managers, and other appropriate technical personnel to provide assurance that management understands the requirements of a radiation protection program such that they can perform reviews to ensure the requirements are being met.
1. The meeting will include discussion and review of performance indicators, license changes, preparations for major changes in operations, health physics issues, procedure compliance indicators, operational safety issues, and the radiation protection program.
2. A summary of each annual meeting will be retained for a period of at least 3 years after the meeting is held.
C. Within 12 months of the issuance date of the Confirmatory Order, PRI will incorporate 10 CFR 40.9, “Completeness and accuracy of information,” and 10 CFR 40.10, “Deliberate misconduct,” requirements into initial and annual employee refresher training for all employees involved in NRC-regulated activities.
1. The training will emphasize the importance of complete and accurate information for all required records, correspondence, and communications with the NRC and its staff.
2. Training will emphasize individual accountability and clearly express that willful or deliberate failures to comply with regulations, orders, or license requirements could result in significant individual enforcement action by the NRC.
3. The training will reinforce that if any individual recognizes a non-compliance, they will immediately report the observation of the non-compliance to management.
D. Power Resources, Inc., will have a qualified member of the health physics staff available at any of its facilities when equipment is being released from a radiologically-controlled area to an unrestricted area. If a qualified member of the health physics staff is unavailable, the equipment will not be released from the radiologically-controlled area.
E. Notifications to the NRC when actions are completed.
1. Power Resources Inc., will submit written notification to the Director, Division of Nuclear Materials Safety, U.S. Nuclear Regulatory Commission, Region IV, 1600 East Lamar Blvd., Arlington, Texas 76011-4511, at intervals not to exceed 12 months until the terms of this Confirmatory Order are completed, providing a status of each item in the Order.
2. Power Resources Inc., will provide its basis for concluding that the terms of the Confirmatory Order have been satisfied, to the NRC, in writing to Director, Division of Nuclear Materials Safety, U.S. Nuclear Regulatory Commission, Region IV, 1600 East Lamar Blvd., Arlington, Texas 76011-4511. The NRC will review to confirm whether or not the terms of the Confirmatory Order have been satisfied.
F. Administrative items.
1. The NRC and PRI agree that the above elements will be incorporated into a Confirmatory Order.
2. The NRC will consider the Confirmatory Order an escalated enforcement action with respect to future enforcement actions. The NRC will give the licensee credit for identification of this willful violation as of May 20, 2014.
3. In consideration of the commitments delineated above, the NRC agrees not to issue a Notice of Violation for the violations discussed in NRC Investigation Report 4-2014-034 and letter issued by the NRC dated August 24, 2016, (EA-16-051), and not to issue an associated civil penalty.
4. This agreement is binding upon successors and assigns of PRI.
Based on the completed actions described above, and the commitments described in
On September 27, 2016, PRI consented to issuing this Confirmatory Order with the commitments, as described in Section V below. Power Resources Inc., further agreed that this Confirmatory Order is to be effective upon issuance, the agreement memorialized in this Confirmatory Order settles the matter between the parties, and that it has waived its right to a hearing.
I find that PRI's actions completed, as described in Section III above, combined with the commitments as set forth in Section V are acceptable and necessary, and conclude that with these commitments public health and safety are reasonably assured. In view of the foregoing, I have determined that public health and safety require that PRI's commitments be confirmed by this Confirmatory Order. Based on the above and PRI's consent, this Confirmatory Order is effective upon issuance.
Accordingly, pursuant to Sections 81, 161b, 161i, 161o, 182, and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR part 40,
A. Within 12 months of the issuance date of the Confirmatory Order and on an annual basis thereafter, PRI will conduct a meeting among key management, radiation safety officer, facility managers, and other appropriate technical personnel to provide assurance that management understands the requirements of a radiation protection program such that they can perform reviews to ensure the requirements are being met.
1. The meeting will include discussion and review of performance indicators, license changes, preparations for major changes in operations, health physics issues, procedure compliance indicators, operational safety issues, and the radiation protection program.
2. A summary of each annual meeting will be retained for a period of at least 3 years after the meeting is held.
B. Within 12 months of the issuance date of the Confirmatory Order, PRI will incorporate 10 CFR 40.9, “Completeness and accuracy of information,” and 10 CFR 40.10, “Deliberate misconduct,” requirements into initial and annual employee refresher training for all employees involved in NRC-regulated activities.
1. The training will emphasize the importance of complete and accurate information for all required records, correspondence, and communications with the NRC and its staff.
2. Training will emphasize individual accountability and clearly express that willful or deliberate failures to comply with regulations, orders, or license requirements, could result in significant individual enforcement action by the NRC.
3. The training will reinforce that if any individual recognizes a non-compliance, they will immediately report the observation of the non-compliance to management.
C. Power Resources, Inc., will have a qualified member of the health physics staff available at any of its facilities when equipment is being released from a radiologically-controlled area to an unrestricted area. If a qualified member of the health physics staff is unavailable, the equipment will not be released from the radiologically-controlled area.
D. Notifications to the NRC when actions are completed.
1. Power Resources Inc., will submit written notification to the Director, Division of Nuclear Materials Safety, U.S. Nuclear Regulatory Commission, Region IV, 1600 East Lamar Blvd., Arlington, Texas 76011-4511, at intervals not to exceed 12 months until the terms of this Confirmatory Order are completed, providing a status of each item in the Order.
2. Power Resources Inc., will provide its basis for concluding that the terms of the Confirmatory Order have been satisfied, to the NRC, in writing to Director, Division of Nuclear Materials Safety, U.S. Nuclear Regulatory Commission, Region IV, 1600 East Lamar Blvd., Arlington, Texas 76011-4511.
The NRC will review to confirm whether or not the terms of the Confirmatory Order have been satisfied.
This Confirmatory Order is binding upon successors and assigns of PRI.
The Regional Administrator, Region IV, may, in writing, relax or rescind any of the above conditions upon demonstration by PRI or its successors of good cause.
In accordance with 10 CFR 2.202 and 10 CFR 2.309, any person adversely affected by this Confirmatory Order, other than PRI, may request a hearing within 30 calendar days of the date of issuance of this Confirmatory Order. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be made in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555, and include a statement of good cause for the extension.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562, August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System (EIE), users will be required to install a Web browser plug-in from the NRC Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
The E-Filing system also distributes an email notice that provides access to the document to the NRC's Office of the General Counsel and any others who have advised the Office of the Secretary that they wish to participate in the proceeding, so that the filer need not serve the documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Electronic Filing Help Desk through the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff.
Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
If a person (other than PRI) requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Confirmatory Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f).
If a hearing is requested by a person whose interest is adversely affected, the Commission will issue an order designating the time and place of any hearings. If a hearing is held, the issue to be considered at such hearing shall be whether this Confirmatory Order should be sustained.
In the absence of any request for a hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section V above shall be final 30 days from the date this Confirmatory Order without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section V shall be final when the extension expires if a hearing request has not been received.
For the Nuclear Regulatory Commission.
Dated this 30th day of September 2016.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 12(d)(1)(A), (B), and (C) of the Act and under sections 6(c) and 17(b) of the Act for an exemption from section 17(a) of the Act. The requested order would permit certain registered open-end investment companies to acquire shares of certain registered open-end investment companies, registered closed-end investment companies, business development companies, as defined in section 2(a)(48) of the Act (“BDCs”), and registered unit investment trusts (collectively, “Underlying Funds”) that are within and outside the same group of investment companies as the acquiring investment companies, in excess of the limits in section 12(d)(1) of the Act.
Destra Investment Trust, Destra Investment Trust II and Destra Exchange-Traded Fund Trust, each a Massachusetts business trust, that is registered, or, in the case of Destra Exchange-Traded Fund Trust, intends to register, under the Act as an open-end management investment company with multiple series (each, a “Trust”); Destra Capital Advisors LLC (the “Initial Adviser”), a Delaware limited liability company, registered as an investment adviser under the Investment Advisers Act of 1940; and Destra Capital Investments LLC, a Delaware limited liability company, registered as a broker-dealer under the Securities Exchange Act of 1934 (the “Exchange Act”).
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 31, 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.
Brent J. Fields, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants: c/o Jane Hong Shissler, Destra Capital Investments LLC, One North Wacker Drive, 48th Floor, Chicago, Illinois 60606.
Laura J. Riegel, Senior Counsel, at (202) 551-3038, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. Applicants request an order to permit (a) a Fund
2. Certain Underlying Funds may invest up to 25% of their assets in a wholly-owned and controlled subsidiary of the Underlying Fund organized under the laws of the Cayman Islands as an exempted company or under the laws of another non-U.S. jurisdiction (each, a “Cayman Sub”), in order to invest in commodity-related instruments and certain other instruments. Applicants state that these Cayman Subs are created for tax purposes in order to ensure that the Underlying Fund would remain qualified as a regulated investment company for U.S. federal income tax purposes.
3. Applicants agree that any order granting the requested relief will be subject to the terms and conditions stated in the application. Such terms and conditions are designed to, among other things, help prevent any potential (i) undue influence over an Underlying Fund that is not in the same “group of investment companies” as the Fund of Funds through control or voting power, or in connection with certain services, transactions, and underwritings, (ii) excessive layering of fees, and (iii) overly complex fund structures, which are the concerns underlying the limits in sections 12(d)(1)(A), (B), and (C) of the Act.
4. 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. 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.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
To Be Published.
Thursday, October 13, 2016.
The following matter will also be considered during the 10:00 a.m. Open Meeting scheduled for Thursday, October 13, 2016, in the Auditorium, Room L-002:
• The Commission will consider whether to adopt rule and form amendments that would permit open-end management investment companies to use “swing pricing” under certain circumstances.
This item is now being separately listed for the Open Meeting in open session as a procedural matter, and the duty officer determined that Commission business required such earlier than one week from today. No earlier notice of this action was practicable.
For further information and to ascertain what, if any, matters have been added, deleted, or postponed, please contact Brent J. Fields in the Office of the Secretary at (202) 551-5400.
On September 7, 2016, NASDAQ PHLX LLC (“Exchange” or “Phlx”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
This order provides notice of filing of Partial Amendment Nos. 1, 2 and 3, and approves the proposal, as modified by Partial Amendment Nos. 1, 2 and 3, on an accelerated basis.
The Exchange's proposed rule change provides for changed functionality to certain Order Types
The Exchange also proposes to amend the definition of the term “Trade-at Intermarket Sweep Order” (“TA ISO”) and one of the TA ISO exceptions to the Trade-at Prohibition.
The Exchange proposes that a Price to Comply Order in a Test Group Pilot Security would operate consistent with current Phlx Rule 3301A(b)(1) except as provided below. Specifically, if a Price to Comply Order for a Test Group Three Pilot Security partially executes on entry and the remainder would lock the Protected Quotation of another market center, the unexecuted portion of the Order would be cancelled. In addition, if a Price to Comply Order for a Test Group Three Pilot Security to buy (sell) is not executable against any orders residing on the Exchange Book and its limit price would lock or cross the Protected Quotation of another market center, the Order would display at one MPI below (above) the Protected Quotation and be ranked at the current midpoint of the NBBO on the Exchange Book.
The Exchange proposes that a Non-Displayed Order in a Test Group Pilot Security would operate consistent with current Phlx Rule 3301A(b)(3) except as provided below. Specifically, a resting Non-Displayed Order in a Test Group Three Pilot Security could not execute at the price of a Protected Quotation of another market center unless the incoming Order qualifies for an exception to the Trade-at Prohibition.
The Exchange proposes that Post-Only Orders will operate consistent with current Phlx Rule 3301A(b)(4) except as provided below. Specifically, for a not attributable Post-Only Order for a Test Group Three Pilot Security if the limit price to buy (sell) would lock or cross a Protected Quotation of another market center, the Order would display at one MPI below (above) the Protected Quotation and would be ranked at the current midpoint of the NBBO on the Exchange Book.
The Exchange proposes that a Market Maker Peg Order in a Test Group Pilot Security will operate consistent with current Phlx Rule 3301A(b)(5) except the displayed price of such an Order would be rounded up for bids (down for offers) to the nearest MPI (
The Exchange proposes that a Midpoint Peg Post-Only Order in a Test Group Pilot Security will operate consistent with current Phlx Rule 3301A(b)(6) and may execute at the midpoint of the NBBO in an increment other than the MPI.
The Exchange proposes that an Order with a Midpoint Pegging attribute in a Test Group Pilot Security will operate consistent with current Phlx Rule 3301B(d). The Exchange also specifies that such Orders may execute at the midpoint of the NBBO in an increment other than the MPI.
The Exchange proposes that an Order with Reserve Size in a Test Group Pilot Security will operate consistent with current Phlx Rule 3301B(h) except as described below. Specifically, a resting Order with Reserve Size in a Test Group Three Pilot Security (
The Exchange proposes that an Order with a Time-in-Force of Good-till-Cancelled in a Test Group Pilot Security will operate consistent with current Phlx Rule 3301B(a)(3) except such Order would be adjusted based on a $0.05 increment.
The Exchange proposes to add the phrase “or Intermarket Sweep Orders” (“ISO”) to the definition of TA ISO as well as to the related TA ISO exception to the Trade-at Prohibition
Currently, Phlx Rule 3317(c)(3)(D)(iii)(c) provides an exception to the Trade-at Prohibition for Block Size Orders.
Both comment letters express support for the proposal 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 the Exchange would be able to meet the 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 the Commission staff's authority.
After careful review of the proposed rule change, as modified by Partial Amendment Nos. 1, 2 and 3, and the comment letters, the Commission finds that the proposal, as modified by Partial Amendment Nos. 1, 2 and 3, 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 to modify its handling of certain Order Types and Order Attributes during the Pilot Period. First, the Exchange proposes to clarify that it will not accept Orders in a Test Group Pilot Security in an increment other than $0.05 unless there is an applicable exception to the MPI. Second, the Exchange proposes to clarify that the displayed price of Market Maker Peg Orders for any Test Group Pilot Security would be rounded to the nearest MPI and that Good-till-Cancelled Orders for a Test Group Pilot Security would be adjusted based on the $0.05 increment. Finally, the Exchange proposes to clarify that Midpoint Peg Post-Only Orders and Orders with Midpoint Pegging Attribute in a Test Group Pilot Security may execute at the midpoint of the NBBO in an increment other than the MPI.
The Exchange also proposes to modify the handling of certain Orders and Order Attributes in Test Group Three Pilot Securities, including: (i) Price to Comply Orders; (ii) Non-Displayed Orders; (iii) Post-Only Orders; and (iv) Orders with Reserve Size. The proposed changes are intended to facilitate compliance with the Trade-at Prohibition.
Finally, the Exchange proposes to amend provisions related to two exceptions to the Trade-at Prohibition. First, the Exchange proposes to amend the definition of TA ISO 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 applicable Trade-at Prohibition exception. Second, the Exchange proposes to amend the Trade-at Prohibition exception for Block Size Orders to allow such Orders to be executed on multiple Trading Centers. Further, the Exchange proposes that for purposes of the Block Size Order exception to the Trade-at Prohibition, the Order must have a size of 5,000 shares and the resulting execution upon entry must have a size of 5,000 shares or more in aggregate.
The Commission believes that the proposed changes are reasonably designed to comply with the Plan. Further, the Commission believes that the proposed changes that target particular Test Groups are necessary for compliance with the Plan.
For these reasons, the Commission finds that the proposed rule change, as modified by Partial Amendment Nos. 1, 2 and 3, is consistent with the requirements of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal, as modified by Partial Amendment Nos. 1, 2 and 3, is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
The Commission finds good cause to approve the proposed rule change, as modified by Partial Amendment Nos. 1, 2 and 3, prior to the thirtieth day after the date of publication of notice of the proposed rule change, as modified by Partial Amendment Nos. 1, 2 and 3 in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend NYSE Arca Equities Rule 7.35P to provide for widened price collar thresholds for the Core Open Auction on volatile trading days. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend NYSE Arca Equities Rule 7.35P (“Rule 7.35P”) to provide for widened price collar thresholds for the Core Open Auction on volatile trading days. The Exchange believes that widening the Auction Collars for the Core Open Auction during periods of market-wide volatility would assist the Exchange in conducting fair and orderly auctions for its listed securities.
As set forth in Rule 7.35P(a)(10), the price collar thresholds for the Core Open Auction are currently set at 10% for securities with an Auction Reference Price of $25.00 or less, 5% for securities with an Auction Reference Price greater than $25.00 but less than or equal to $50.00, and 3% for securities with an Auction Reference Price greater than $50.00.
The Exchange proposes to widen the applicable Auction Collars for the Core Open Auction on days with market-wide volatility to 10% for all Auction-Eligible Securities,
To determine whether there is market-wide volatility, the Exchange proposes to use the same standard that its affiliated exchange, the New York Stock Exchange LLC (“NYSE”), recently added to determine whether there is market-wide volatility.
The Exchange believes that widening the Auction Collars for the Core Open Auction during periods of market-wide volatility would promote greater efficiency and transparency on such trading days by specifying uniform parameters for how the Core Open Auction would be effectuated for all Auction-Eligible securities on trading days experiencing market-wide volatility.
The proposed rule change is consistent with Section 6(b) of the Act,
In particular, the Exchange believes that applying the same Auction Collars of 10% to all Eligible Auction Securities during periods of market-wide volatility, regardless of the Auction Reference Price, would remove impediments to and perfect the mechanism of a free and open market and a national market system, and in general, protect investors and the public interest, because it would promote fair and orderly auctions during periods when market-wide volatility is causing pricing dislocation across all securities. The Exchange further believes that widening the price collar thresholds for all securities would remove impediments to and perfect the mechanism of a national market system because it is designed to allow for greater price movement, while at the same time preventing auction trades from occurring at prices significantly away from the applicable Auction Reference Price. Accordingly, investors would be protected from executions significantly away from the last sale in a security or other applicable reference price, but natural price fluctuations resulting from the market volatility would be permitted. In addition, the Exchange believes that widening the Auction Collars could reduce the possibility of securities triggering multiple trading pauses under the Regulation NMS Plan to Address Market Volatility.
The Exchange further believes that by specifying the standards for when Auction Collars would be widened, the proposal would advance the efficiency and transparency of the opening process, thereby fostering accurate price discovery at the open of trading. For the same reasons, the proposal is also designed to protect investors as well as the public interest.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address competitive issues but rather is designed to ensure a fair and orderly market by widening the price collar thresholds for the Core Open Auction on trading days with market-wide volatility and therefore will not create a burden on competition. The proposed rule change is not intended to address competitive issues but rather promote greater efficiency and transparency at the open of trading on the Exchange.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove such proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEArca-2016-136. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from certain requirements of rule 3a-7(a)(4)(i) under the Act.
Applicants request an order that would permit an issuer of asset-backed securities (“ABS”) that is not registered as an investment company under the Act in reliance on rule 3a-7 under the Act (an “Issuer”) to appoint any of the applicants to act as a trustee in connection with the Issuer's ABS when any such applicant is affiliated with an underwriter for the Issuer's ABS.
The Bank of New York Mellon Trust Company, National Association and The Bank of New York Mellon.
The application was filed on August 1, 2016.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicant 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 31, 2016 and should be accompanied by proof of service on the applicant, 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.
Brent J. Fields, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. Applicants: Lincoln Finkenberg, Esq., Associate General Counsel & Managing Director, The Bank of New York Mellon, 225 Liberty Street, New York, NY 10286.
Laura J. Riegel, Senior Counsel, at (202) 551-3038, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. Both applicants are wholly-owned direct subsidiaries of The Bank of New York Mellon Corporation.
2. An ABS transaction typically involves the transfer of assets by a seller, usually by a “sponsor,” to a bankruptcy remote special purpose corporate or trust entity that is established for the sole purpose of holding the assets and issuing ABS to investors (an “ABS Transaction”). Payments of interest and principal on the ABS depend primarily on the cash flow generated by the pool of assets owned by the Issuer.
3. The parties to an ABS Transaction enter into several transaction agreements that provide for the holding of the assets by the Issuer and define the rights and responsibilities of the parties to the transaction (“Transaction Documents”). The operative Transaction Document governing the trustee is referred to herein as the “Agreement.”
4. The sponsor of an ABS Transaction assembles the pool of assets by purchasing or funding them, describes them in the offering materials, and retains the underwriter to sell interests in the assets to investors. The sponsor determines the structure of the ABS Transaction and drafts the Transaction Documents. The sponsor selects the other parties to the ABS Transaction, including the underwriter, the servicer, and the trustee.
5. The servicer, either directly or through subservicers, manages the assets that the Issuer holds. The servicer typically collects all the income from the assets and remits the income to the trustee. The trustee uses the income, as instructed by the servicer and/or as provided by the Agreement, to pay interest and principal on the ABS, to fund reserve accounts and purchases of additional assets, and to make other payments including fees owed to the trustee and other parties to the ABS Transaction.
6. The sponsor of an ABS Transaction selects the trustee and other participants in the transaction. In selecting a trustee, the sponsor generally seeks to obtain customary trust administrative and related services for the Issuer at minimal cost. In some instances, other parties to an ABS Transaction may provide recommendations to a sponsor about potential trustees. An underwriter for an ABS Transaction also may provide advice to the sponsor about trustee selection based on, among other things, the underwriter's knowledge of the pricing and expertise offered by a particular trustee in light of the contemplated transaction.
7. If an underwriter affiliated with an applicant recommends a trustee to a sponsor, both the underwriter's recommendation and any selection of an applicant by the sponsor will be based upon customary market considerations of pricing and expertise, among other things, and the selection will result from an arms-length negotiation between the sponsor and an applicant. An applicant
8. The trustee's role in an ABS Transaction is specifically defined by the Agreement, and under the Agreement the trustee is not expected or required to perform discretionary functions. The responsibilities of the trustee as set forth in the Agreement are narrowly circumscribed and limited to those expressly accepted by the trustee. The trustee negotiates the provisions applicable to it directly with the sponsor and is then appointed by, and enters into the Agreement with, the Issuer.
9. The trustee usually becomes involved in an ABS Transaction after the substantive economic terms have been negotiated between the sponsor and the underwriters. The trustee does not monitor any service performed by, or obligation of, an underwriter, whether or not the underwriter is affiliated with the trustee. In the unlikely event that an applicant, in acting as trustee to an Issuer for which an affiliate acts as underwriter, becomes obligated to enforce any of the affiliated underwriter's obligations to the Issuer, an applicant will resign as trustee for the Issuer consistent with the requirements of rule 3a-7(a)(4)(i). In such an event, an applicant will incur the costs associated with the Issuer's procurement of a successor trustee.
10. The sponsor selects one or more underwriters to purchase the Issuer's ABS and resell them or to place them privately with buyers obtained by the underwriter. The sponsor enters into an underwriting agreement with the underwriter that sets forth the responsibilities of the underwriter with respect to the distribution of the ABS and includes representations and warranties regarding, among other things, the underwriter and the quality of the Issuer's assets. The obligations of the underwriter under the underwriting agreement are enforceable against the underwriter only by the sponsor.
11. The underwriter may assist the sponsor in the organization of an Issuer by providing advice, based on its expertise in ABS Transactions, on the structuring and marketing of the ABS. This advice may relate to the risk tolerance of investors, the type of collateral, the predictability of the payment stream, the process by which payments are allocated and down-streamed to investors, the way that credit losses may affect the trust and the return to investors, whether the collateral represents a fixed set of specific assets or accounts, and the use of forms of credit enhancements to transform the risk-return profile of the underlying collateral. Any involvement of an underwriter in the organization of an Issuer that occurs is limited to helping determine the assets to be pooled, helping establish the terms of the ABS to be underwritten, and providing the sponsor with a warehouse line of credit for the assets to be transferred to the Issuer in connection with, and prior to, the related securitization.
12. An underwriter may provide advice to a sponsor regarding the sponsor's selection of a trustee for the Issuer. However, an underwriter's role in structuring a transaction would not extend to determining the obligations of a trustee, and the underwriter is not a party to the Agreement or to any of the Transaction Documents. Except for arrangements involving credit or credit enhancement for an Issuer or remarketing agent activities, the underwriter typically has no role in the operation of the Issuer after its issuance of securities. Applicants represent that although an underwriter typically may provide credit or credit enhancement for an Issuer or engage in remarketing agent activities, an underwriter affiliated with an applicant will not provide or engage in such activities.
1. Rule 3a-7 excludes from the definition of investment company under section 3(a) of the Act an Issuer that meets the conditions of the rule. One of rule 3a-7's conditions, set forth in paragraph (a)(4)(i), requires that the Issuer appoint a trustee that is not affiliated with the Issuer or with any person involved in the organization or operation of the Issuer (the “Independent Trustee Requirement”). Rule 3a-7(a)(4)(i) therefore prohibits an Issuer from appointing a trustee that is affiliated with an underwriter.
2. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction or any class or classes of persons, securities or transactions from any provision of the Act, or from any rule thereunder, if and to the extent 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.
3. Applicants request exemptive relief under section 6(c) of the Act from rule 3a-7(a)(4)(i) under the Act to the extent necessary to permit an Issuer to appoint an applicant as a trustee to the Issuer when such applicant is affiliated with an underwriter involved in the organization of the Issuer. Applicants submit that the requested exemptive relief from the Independent Trustee Requirement is necessary and appropriate in the public interest and is consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act due to changes in the banking industry, due to the timing and nature of the roles of the trustee and the underwriter in ABS Transactions, and because the requested relief is consistent with the policies and purposes underlying the Independent Trustee Requirement and rule 3a-7 in general.
4. Applicants note that when rule 3a-7 was proposed in 1992, virtually all trustees were unaffiliated with the other parties involved in an ABS Transaction. Applicants state that consolidation within the banking industry, as well as economic and other business factors, has resulted in a significant decrease in the number of bank trustees providing services to Issuers. Applicants also state that bank consolidation has been accompanied by the expansion of banks into investment banking, including the underwriting of ABS Transactions. Applicants further state that due to these banking industry changes, most trustees that provide services to Issuers, including an applicant, have affiliations with underwriters to Issuers. Applicants state that, as a result, when an affiliate of an applicant is selected to underwrite ABS in an ABS Transaction, rule 3a-7(a)(4)(i)'s Independent Trustee Requirement generally prevents applicant from serving as trustee for the Issuer. Applicants state that the Independent Trustee Requirement imposes an unnecessary regulatory limitation on trustee selection and causes market distortions by leading to the selection of trustees for reasons other than customary market considerations of pricing and expertise. This result is disadvantageous to the ABS market and to ABS investors.
5. Applicants submit that due to the nature and timing of the roles of the trustee and the underwriter, an applicant's affiliation with an underwriter would not result in a conflict of interest or possibility of overreaching that could harm investors. Applicants state that the trustee's role begins with the Issuer's issuance of its securities, and the trustee performs its role over the life of the Issuer. Applicants state that, in contrast, the underwriter is chosen early in the ABS Transaction process, may help to structure the ABS Transaction, distributes the Issuer's securities to investors, and generally have no role subsequent to the distribution of the Issuer's securities. Applicants further
6. Applicants state that the trustee's role is narrowly defined, and that the trustee is neither expected nor required to exercise discretion or judgment except after a default in the ABS transaction, which rarely occurs. Applicants state that the duties of a trustee after a default are limited to enforcing the terms of the Agreement for the benefit of debt holders as a “prudent person” would enforce such interests for his own benefit. Applicants further state that the trustee of the Issuer has virtually no discretion to pursue anyone in any regard other than preserving and realizing on the assets. In any event, applicants state that any role taken by the trustee in the event of a default would occur after the underwriter has terminated its role in the transaction.
7. Applicants submit that the concerns underlying the Independent Trustee Requirement are not implicated if the trustee for an Issuer is independent of the sponsor, servicer, and credit enhancer for the Issuer, but is affiliated with an underwriter for the Issuer, because in that situation no single entity would act in all capacities in the issuance of the ABS and the operation of an Issuer. Applicants state that each applicant would continue to act as an independent party safeguarding the assets of any Issuer regardless of an affiliation with an underwriter of the ABS. Applicants submit that the concern that affiliation could lead to a trustee monitoring the activities of an affiliate also is not implicated by a trustee's affiliation with an underwriter, because, in practice, a trustee for an Issuer does not monitor the distribution of securities or any other activity performed by underwriters. Applicants further state that the requested relief would be consistent with the broader purpose of rule 3a-7 of not hampering the growth and development of the ABS market, to the extent consistent with investor protection.
8. Applicants state that the conditions set forth below provide additional protections against conflicts and overreaching. For example, the conditions ensure that an applicant will continue to act as an independent party safeguarding the assets of an Issuer regardless of an affiliation with an underwriter of the ABS and would not allow the underwriter any greater access to the assets, or cash flows derived from the assets, of the Issuer than if there were no affiliation.
Each applicant agrees that any order granting the requested relief will be subject to the following conditions:
1. The applicant will not be affiliated with any person involved in the organization or operation of the Issuer in an ABS Transaction other than the underwriter.
2. The applicant's relationship to the affiliated underwriter will be disclosed in writing to all parties involved in an ABS Transaction, including the rating agencies and the ABS holders.
3. The underwriter affiliated with the applicant will not be involved in the operation of an Issuer, and the affiliated underwriter's involvement in the organization of an Issuer will extend only to determining the assets to be pooled, assisting in establishing the terms of the ABS to be underwritten, and providing the sponsor with a warehouse line of credit for the assets to be transferred to the Issuer in connection with, and prior to, the related securitization.
4. No affiliated person of the applicant, including the affiliated underwriter, will provide credit or credit enhancement to an Issuer if the applicant serves as trustee to the Issuer.
5. The underwriter affiliated with the applicant will not engage in any remarketing agent activities, including involvement in any auction process in which ABS interest rates, yields, or dividends are reset at designated intervals in any ABS Transaction for which the applicant serves as trustee to the Issuer.
6. All of the affiliated underwriter's contractual obligations pursuant to the underwriting agreement will be enforceable by the sponsor.
7. Consistent with the requirements of rule 3a-7(a)(4)(i), the applicant will resign as trustee for the Issuer if the applicant becomes obligated to enforce any of the affiliated underwriter's obligations to the Issuer.
8. The applicant will not price its services as trustee in a manner designed to facilitate its affiliate being named underwriter.
For the Commission, by the Division of Investment Management, under delegated authority.
On August 8, 2016, Miami International Securities Exchange, LLC (“MIAX” or “Exchange”) filed with the Securities and Exchange Commission (the “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
MIAX proposes to add Rule 518(a) to define a complex order as any order involving the concurrent purchase and/or sale of two or more different options in the same underlying security (the “legs” or “components” of the complex order),
A stock-option order is proposed to be defined as an order to buy or sell a stated number of units of an underlying security (stock or Exchange Traded Fund Share (“ETF”)) or a security convertible into the underlying stock (“convertible security”) coupled with the purchase or sale of options contract(s) on the opposite side of the market representing either (i) the same number of units of the underlying
The Exchange has also proposed to define a complex strategy as a particular combination of components and their ratios to one another. As proposed, the Exchange may limit the number of new complex strategies that may be in the System at a particular time and will communicate this limitation to Members via Regulatory Circular.
MIAX is proposing to add Rule 518(b) to allow complex orders to be entered as limit orders, market orders, Good `til Cancelled (“GTC”) orders, or day limit orders (all as defined in MIAX Rule 516). In addition, MIAX is proposing new complex order types: Complex Auction-on-Arrival (“cAOA”) orders, Complex Auction-or-Cancel (“cAOC”) orders, or Complex Immediate-or-Cancel (“cIOC”) orders, as described below. Proposed Rule 518(b)(1) states that the Exchange will issue a Regulatory Circular listing which complex order types, among the complex order types set forth in the proposed Rule, are available for use on the Exchange. Additional Regulatory Circulars will be issued as additional complex order types, among those complex order types set forth in the proposed Rule, become available for use on the Exchange. Regulatory Circulars will also be issued when a complex order type that had been in usage on the Exchange will no longer be available for use.
Proposed Rule 518(c) describes the manner in which complex orders will be handled and traded on the Exchange. The proposed rule provides that the Exchange will determine and communicate to Members via Regulatory Circular which complex order origin types (
Proposed Rule 518(c)(1) provides that bids and offers on complex orders and quotes may be expressed in $0.01 increments, and the component(s) of a complex order may be executed in $0.01 increments, regardless of the minimum increments otherwise applicable to individual components of the complex order,
Proposed Rule 518(c)(1)(iii) states generally that a complex order will not be executed at a net price that would cause any component of the complex strategy to be executed: (A) at a price of zero; or (B) ahead of a Priority Customer order on the Simple Order Book without improving the MBBO of at least one component of the complex strategy.
MIAX proposes to add Rule 518(c)(2)(i), which states that complex orders and quotes do not participate in the opening process for the individual option legs conducted pursuant to Rule 503. At the beginning of each trading session, and upon reopening after a halt, once all components of a complex strategy are open, an initial evaluation will be conducted in order to determine whether a complex order is a Complex Auction-eligible order, using the process and criteria described in Interpretations and Policies .03(a) of proposed Rule 518 regarding the Initial Improvement Percentage (“IIP”). Specifically, the Exchange would set a defined percentage (such percentage, the “IIP”) of the dcMBBO
MIAX also proposes that the Strategy Book will open for trading, or reopen for trading after a halt, with a Complex Auction if it is determined that one of the following conditions is present: (A) A complex order with no matching interest on the Strategy Book equals or improves the IIP, (B) matching interest exists at a price that is equal to or through the IIP, or (C) a size imbalance exists where the price at which the maximum quantity that can trade is equal to or through the IIP. If the Strategy Book contains matched interest or a size imbalance exists where the price at which the maximum quantity can trade is not equal to or through the IIP, the Strategy Book will open for trading with a trade and a Complex Auction will not be initiated. The remaining portion of any complex order for which there is a size imbalance will be placed on the Strategy Book. If the Strategy Book contains no matching interest or interest equal to or through the IIP, the complex strategy will open without a trade and a Complex Auction will not be initiated.
Proposed Rule 518(c)(2)(ii) describes the manner in which the System determines the price of execution of complex orders and quotes. Incoming complex orders and quotes will be executed by the System in accordance
The proposed rule also provides that incoming complex orders that cannot be executed because the executions would be priced (A) outside of the icMBBO, or (B) equal to or through the icMBBO due to a Priority Customer Order at the best icMBBO price, will be cancelled if such complex orders are not eligible to be placed on the Strategy Book.
Proposed Rule 518(c)(3) describes how the system will establish priority for complex orders.
Regarding execution and allocation of complex orders, proposed Rule 518(c)(3)(ii) establishes that complex orders will be automatically executed against bids and offers on the Strategy Book in price priority. Bids and offers at the same price on the Strategy Book will be executed pursuant to the following priority rules: (A) Priority Customer complex orders resting on the Strategy Book will have first priority to trade against a complex order. Priority Customer complex orders resting on the Strategy Book will be allocated in price time priority; (B) Market Maker Priority Interest for Complex (described below) will collectively have second priority. Market Maker Priority Interest for Complex will be allocated on a pro-rata basis as defined in Rule 514(c)(2); (C) Market Maker non-Priority Interest for Complex will collectively have third priority. Market Maker non-Priority Interest for Complex will be allocated on a pro-rata basis as defined in Rule 514(c)(2); (D) Non-Market Maker Professional Interest orders resting on the Strategy Book will collectively have fourth priority. Non-Market Maker Professional Interest orders will be allocated on a pro-rata basis as defined in Rule 514(c)(2).
Proposed Rule 518(c)(4), sets forth the price(s) at which complex orders will be placed on the Strategy Book. The managed interest process is initiated when a complex order that is eligible to be placed on the Strategy Book cannot be executed against either the Strategy Book or the Simple Order Book (with the individual legs) at the complex order's net price, and is intended to ensure that a complex order to be managed does not result in a locked or crossed market on the Exchange. Once initiated, the managed interest process for complex orders will be based upon the icMBBO.
Under the managed interest process, a complex order that is resting on the Strategy Book and is either a complex market order as described in proposed Rule 518(c)(6) and discussed below, or has a limit price that locks or crosses the current opposite side icMBBO when the icMBBO is the best price, may be subject to the managed interest process for complex orders as discussed herein. Complex Standard quotes are not eligible for inclusion in the managed interest process. An unexecuted complex Standard quote with a limit price that would otherwise be managed to the icMBBO will be cancelled. If the order is not a Complex Auction-eligible order as defined in proposed Rule 518(d)(1) and described below, the System will first determine if the inbound complex order can be matched against other complex orders and/or quotes resting on the Strategy Book at a price that is at or inside the icMBBO (provided there are no Priority Customer orders on the Simple Order Book at that
When the opposite side icMBBO does not include a Priority Customer Order and is not available for execution in the ratio of such complex order, or cannot be executed through Legging with the Simple Order Book, the System will place such complex order on the Strategy Book and display such booked complex order at a book and display price that will lock the current opposite side icMBBO because it is a price at which another complex order or quote can trade.
Should the icMBBO change, the complex order's book and display price will continuously re-price to the new icMBBO until (A) the complex order has been executed in its entirety; (B) if not executed, the complex order has been placed on the Strategy Book at prices up to and including its limit price or, in the case of a complex market order, at the new icMBBO; (C) the complex order has been partially executed and remaining unexecuted contracts have been placed on the Strategy Book at prices up to and including their limit price or, in the case of a complex market order, at the new icMBBO; or (D) the complex order or any remaining portion of the complex order is cancelled. If the Exchange receives a new complex order or quote for the complex strategy on the opposite side of the market from the managed complex order that can be executed, the System will immediately execute the remaining contracts from the managed complex order to the extent possible at the complex order's current book and display price, provided that the execution price is not outside of the current icMBBO. If unexecuted contracts remain from the complex order on the Strategy Book, the complex order's size will be revised and disseminated to reflect the complex order's remaining contracts at its current managed book and display price.
Proposed Rules 518(c)(2)(v) and (c)(5) describe how and when the System determines to execute or otherwise handle complex orders in the System, a process known as “evaluation.” The System will evaluate complex orders and quotes and the Strategy Book on a regular and event-driven basis. For example, the System would evaluate whether an incoming complex order is Complex Auction-eligible;
MIAX proposes to adopt Rule 518(a)(9) relating to derived orders. A “derived order” is an Exchange-generated limit order on the Simple Order Book that represents either the bid or offer of one component of a complex order resting on the Strategy Book that is comprised of orders to buy or sell an equal quantity (with a one-to-one ratio) of two option components.
MIAX proposes that a derived order is automatically removed from the Simple Order Book if (i) the displayed price of the derived order is no longer at the displayed best bid or offer on the Simple Order Book, (ii) execution of the derived order would no longer achieve the net price of the complex order on the Strategy Book when the other component of the complex order is executed against the best bid or offer on the Simple Order Book, (iii) the complex order is executed in full,
MIAX proposes that a derived order will be handled in the same manner as other orders on the Simple Order Book except as otherwise provided in proposed Rule 518, and will be executed only after all other executable orders (including orders subject to the managed interest process as described below) and quotes at the same price are executed in full.
Proposed Rule 518(c)(2)(iii) describes the Legging process through which complex orders, under certain circumstances, are executed against the individual components of a complex strategy on the Simple Order Book. Complex orders up to a maximum number of legs (determined by the Exchange on a class-by-class basis as either two or three legs and communicated to Members via Regulatory Circular) may be automatically executed against bids and offers on the Simple Order Book for the individual legs of the complex order (“Legging”), provided the complex order can be executed in full or in a permissible ratio by such bids and offers, and provided that the execution price of each component is not executed at a price that is outside of the NBBO.
Proposed Rule 518(d), Complex Auction Process, describes the process for determining if a complex order is eligible to begin a Complex Auction, and to participate in a Complex Auction that is in progress. Certain option classes, as determined by the Exchange and communicated to Members via Regulatory Circular, will be eligible to participate in a Complex Auction (an “eligible class”). Upon evaluation as described above, the Exchange may determine to automatically submit a Complex Auction-eligible order (defined below) into a Complex Auction (as described below). Upon entry into the System or upon evaluation of a complex order resting at the top of the Strategy Book, Complex Auction-eligible orders may be subject to an automated request for responses (“RFR”), as described below.
Proposed Rule 518(d)(1) defines and describes the handling of a Complex Auction-eligible order. A “Complex Auction-eligible order” means a complex order that, as determined by the Exchange, is eligible to initiate or join a Complex Auction based upon the order's marketability (
In order to initiate a Complex Auction upon receipt, a Complex Auction-eligible order must be designated as cAOA
A complex order not designated as cAOA will still have execution opportunities. A complex order not designated as cAOA is deemed to be “do not auction on arrival” by the System by default. Such a complex order will still have the opportunity to execute upon entry into the System without initiating a Complex Auction. For example, such an order may execute automatically upon entry into the System by matching with complex orders and/or quotes resting on the Strategy Book at a price that is at or inside the icMBBO, or via Legging against the Simple Order Book. Additionally, such an order on the opposite side of, and marketable against, a Complex Auction-eligible order may trade against the Complex Auction-eligible order if the System receives the order while a Complex Auction is ongoing.
Proposed Rule 518(d)(2) describes the circumstances under which a Complex Auction is begun. Upon receipt of a Complex Auction-eligible order or upon
The Exchange may determine to limit the frequency of Complex Auctions for a complex strategy (
Proposed Rule 518(d)(3) defines the amount of time within which participants may respond to an RFR message. The term “Response Time Interval” means the period of time during which responses to the RFR may be entered. The Exchange will determine the duration of the Response Time Interval, which shall not exceed 500 milliseconds, and will communicate it to Members via Regulatory Circular.
Proposed Rule 518(d)(4) states that Members may submit a response to the RFR message (an “RFR Response”) during the Response Time Interval. RFR Responses may be submitted in $0.01 increments. RFR Responses must be cAOC orders
Proposed Rule 518(d)(5) describes how Complex Auction-eligible orders are handled following the Response Time Interval. At the end of the Response Time Interval, Complex Auction-eligible orders (and other complex orders and quotes) may be executed in whole or in part. Complex Auction-eligible orders will be executed against the best priced contra side interest, and any unexecuted portion of a Complex Auction-eligible order remaining at the end of the Response Time Interval will either be evaluated to determine if it may initiate another Complex Auction, or placed on the Strategy Book and ranked pursuant to proposed Rule 518(c)(3) as discussed above.
The Complex Auction will terminate at the end of the Response Time Interval without trading when any individual component of a complex strategy in the Complex Auction process is subject to a wide market condition as described in proposed Rule 518, Interpretations and Policies .05(e)(1), or to a SMAT Event as described in proposed Rule 518(a)(16) and proposed Interpretations and Policies .05(e)(2), or immediately without trading if any individual component or underlying security of a complex strategy in the Complex Auction process is subject to a halt as described in proposed Rule 518, Interpretations and Policies .05(e)(3).
Proposed Rule 518(d)(6) describes the manner in which the System prices and executes complex orders and quotes at the conclusion of the Response Time Interval. A complex strategy will not be executed at a net price that would cause any component of the complex strategy to be executed: (A) at a price of zero; or (B) ahead of a Priority Customer order on the Simple Order Book without improving the MBBO on at least one component of the complex strategy by at least $.01.
At the conclusion of the Response Time Interval, using $0.01 inside the current icMBBO as the boundary (the “boundary”), the System will calculate the price where the maximum quantity of contracts can trade and also determine whether there is an imbalance.
If there is a size imbalance, and if a single price satisfies the maximum quantity criteria, that single price is used as the Complex Auction price. If two or more prices satisfy the maximum quantity criteria, the System will price the execution at the price on the opposite side of the size imbalance that meets the maximum quantity criteria, while also respecting limit prices and the pricing boundaries which include the price protection boundary of $0.01 inside of the icMBBO and the price protection range (if any) selected by the Members whose interest makes up the order imbalance.
If, after trading the maximum quantity at the execution price, Complex Auction interest remains with a managed price that locks or crosses the opposite side icMBBO, the System will execute the individual legs of eligible remaining Complex Auction-eligible orders and quotes against orders and quotes resting on the Simple Order Book that were present prior to the beginning of the Complex Auction at the icMBBO if available in the proper ratio and at or within the NBBO of each component of the complex order.
After executing the imbalance side interest to the extent possible at the icMBBO, and if Priority Customer interest at the icMBBO that is not in the proper ratio remains, the System will place such remaining imbalance side interest on the Strategy Book and manage such interest pursuant to proposed Rule 518(c)(4). If no Priority Customer interest at the icMBBO remains, the System will execute Complex Auction interest with any available complex orders, complex Standard quotes or complex eQuotes priced at the icMBBO, and then with any orders or quotes on the Simple Order Book at the icMBBO that were received or modified after the beginning of the Response Time Interval.
If after trading the maximum quantity at the initial icMBBO all interest at the initial icMBBO has been executed, including through Legging with the Simple Order Book (as described in proposed Rule 518(c)(2)(iii) above), and Complex Auction interest remains with a managed price that crosses the exhausted icMBBO or dcMBBO (if the next opposite side icMBBO is also the dcMBBO), or locks or crosses the next opposite side icMBBO or dcMBBO (if the next opposite side icMBBO is also the dcMBBO), the System will repeat the process for a size imbalance described in proposed Rule 518(d)(6)(i)(B)(1)-(3).
If all interest at the dcMBBO has been exhausted and Auction orders with a managed or limit price that locks or crosses the exhausted dcMBBO price remain, the System will place any remaining Complex Auction interest on the Strategy Book and manage the interest that is eligible to rest on the Strategy Book pursuant to proposed Rule 518(c)(4) to the exhausted dcMBBO price, cancel Complex Auction interest (including remaining complex order cAOC interest) that is not eligible to rest on the Strategy Book, and cancel any complex Standard quotes that are locking or crossing the exhausted dcMBBO price. The System will then immediately initiate a reevaluation of the remaining interest from the Complex Auction and may initiate a new Complex Auction without regard to the RIP.
The System will place any eligible remaining non-marketable Complex Auction orders and quotes on the Strategy Book, cancel any remaining Complex Auction interest that is not eligible to rest on the Strategy Book, and cancel complex Standard quotes that would otherwise require management because of their price as described in proposed Rule 518(c)(4) above if placed on the Strategy Book.
Proposed Rule 518(d)(7) describes the allocation of complex orders and quotes that are executed in a Complex Auction.
Individual orders and quotes in the leg markets resting on the Simple Order Book prior to the initiation of a Complex Auction and that have remained unchanged during the Auction have first priority, provided the complex order can be executed in full (or in a permissible ratio) against orders and quotes on the Simple Order Book, provided that the prices of the components on the Simple Order Book are at or within the NBBO for each component. Orders and/or quotes resting on the Simple Order Book that execute against a complex order will be allocated pursuant to Rule 514(c).
Priority Customer complex orders resting on the Strategy Book before, or that are received during, the Response Time Interval, and Priority Customer RFR Responses, collectively have second priority and will be allocated in price-time priority.
Market Maker non-Priority Interest for Complex and RFR Responses from Market Makers with non-Priority Interest for Complex collectively have fourth priority and will be allocated on a pro-rata basis as defined in Rule 514(c)(2).
Non-Market Maker Professional Interest complex orders resting on the Strategy Book, non-Market Maker Professional Interest complex orders placed on the Strategy Book during the Response Time Interval, and non-Market Maker Professional Interest RFR Responses will collectively have fifth priority and will be allocated on a pro-rata basis as defined in Rule 514(c)(2).
Finally, individual orders and quotes in the leg markets that are received or changed during the Complex Auction will collectively have sixth priority and will be allocated pursuant to Rule 514(c)(2).
Proposed Rule 518(d)(8) describes the manner in which the System handles incoming unrelated complex orders and quotes that are eligible to join a Complex Auction and are received during the Response Time Interval for a Complex Auction-eligible order. Such incoming unrelated complex orders and quotes will simply join the Complex Auction, will be ranked by price, and will be allocated as described above.
MIAX is proposing Interpretations and Policies .01 to provide additional detail regarding the trading and regulation of stock-option orders on the Exchange. The Exchange will determine when stock-option orders will be made available for trading in the System and communicate such determination to Members via Regulatory Circular.
As set forth in proposed Rule 518, Interpretations and Policies .01(a), stock-option orders may be executed against other stock-option orders through the Strategy Book and Complex Auction. Stock-option orders will not be legged against the individual component legs, and the System will not generate a derived order based upon a stock-option order.
MIAX Rule 518, Interpretations and Policies .01(a), permits Members to submit stock-option orders only if such orders comply with the Qualified Contingent Trade (“QCT”) Exemption from Rule 611(a) of Regulation NMS
To participate in stock-option order processing, a Member must give up a Clearing Member previously identified to, and processed by the Exchange as a Designated Give Up for that Member in accordance with Rule 507 and which has entered into a brokerage agreement with one or more Exchange-designated broker-dealers that are not affiliated with the Exchange to electronically execute the underlying security component of the stock-option order at a stock trading venue selected by the Exchange-designated broker-dealer on behalf of the Member.
Proposed Rule 518, Interpretations and Policies .01(b) sets forth the process by which stock-option orders, including inbound and those resting on the Strategy Book, will be handled.
If the stock-option order is properly marked, the System will determine whether the stock-option order is Complex Auction-eligible.
When the short sale price test in Rule 201 is triggered for a covered security,
If the stock-option order is not Complex Auction-eligible, the System will determine if it is eligible to be executed against another inbound stock-option order or another stock-option order resting on the Strategy Book.
If the Exchange-designated broker-dealer or other stock trading venue, as applicable, cannot execute the underlying security component of a stock-option order in accordance with Rule 201, the Exchange will not execute the option component(s) of the stock-option order and will either place the unexecuted stock-option order on the Strategy Book or cancel it back to the submitting Member in accordance with the submitting Member's instructions (except that cAOC and cIOC stock-option orders and eQuotes will be cancelled).
MIAX also proposes that the execution price of the underlying security component must be also within the high-low range for the day in the underlying security at the time the stock-option order is processed and within a certain price from the current market, which the Exchange will establish and communicate to Members via Regulatory Circular.
Proposed Rule 518, Interpretations and Policies .01(c) states that the option leg(s) of a stock-option order shall not be executed (i) at a price that is inferior to the Exchange's best bid (offer) in the option or (ii) at the Exchange's best bid (offer) in that option if one or more Priority Customer Orders are resting at the best bid (offer) price on the Simple Order Book in each of the option components and the stock-option order could otherwise be executed in full (or in a permissible ratio). If one or more Priority Customer Orders are resting at the best bid (offer) price on the Simple Order Book, at least one option component must trade at a price that is better than the corresponding bid or offer in the marketplace by at least $0.01.
Finally, proposed Rule 518, Interpretations and Policies .01(f) provides that the underlying security of a stock-option order is in a limit up-limit down state as defined in Rule 530, such order will only execute if the calculated stock price is within the permissible Price Bands as determined by SIPs under the Plan to Address Extraordinary Market Volatility Pursuant to Rule 608 of Regulation NMS, as it may be amended from time to time (the “LULD Plan”).
Proposed Rule 518, Interpretations and Policies .02 describes the manner in which the Exchange will allow Market Maker quotes in complex strategies.
The Exchange will determine, on a class-by-class basis, the complex strategies in which Market Makers may submit complex Standard quotes, and will notify Members of such determination via Regulatory Circular. Market Makers may submit complex eQuotes in their appointed options classes.
A “Complex Auction or Cancel eQuote” or “cAOC eQuote”
A “Complex Immediate or Cancel eQuote” or “cIOC eQuote”
Market Maker complex quotes are executed in the same manner as complex orders but will not be executed against bids and offers on the Simple Order Book via Legging as described in proposed Rule 518(c)(2)(iii). Market Maker complex Standard quotes may rest on the Strategy Book and are not subject to the managed interest process described in proposed Rule 518(c)(4). An unexecuted complex Standard quote with a limit price that would otherwise be managed to the icMBBO will be cancelled.
Certain Market Maker complex Standard quotes and complex eQuotes (as defined below) will qualify as “Market Maker Priority Interest for Complex” on the Strategy Book (as defined below) if the certain criteria have been met. If complex Standard quoting is engaged for a complex strategy, a Market Maker complex Standard quote or complex eQuote will qualify as Market Maker Priority Interest for Complex if the Market Maker has a complex Standard quote in the complex strategy that equals or improves the dcMBBO on the opposite side from the incoming complex order or quote at the time of evaluation (a “Complex priority quote”). For purposes of the proposed Rule, Market Maker Priority Interest for Complex is established at the beginning of a Complex Auction (as described in proposed Rule 518(d) below), or at the time of execution in free trading.
Market Makers are not required to enter complex quotes on the Strategy Book.
MIAX is also proposing to adopt price protection features. First, the proposal establishes a price protection program for Vertical Spreads and Calendar Spreads by establishing a Vertical Spread Variance (“VSV”)
If the execution price of a complex order would be outside of the limits established in the VSV or the CSV, such complex order will be placed on the Strategy Book and will be managed to the appropriate trading price limit as described in proposed Rule 518(c)(4) above. Orders to buy below the minimum trading price limit and orders to sell above the maximum trading price limit (in the case of Vertical Spreads) will be rejected by the System.
Proposed Rule 518, Interpretations and Policies .05(e)(1)(i), describes how the System functions when there is a wide market condition
The System will continue to evaluate the Strategy Book. If a wide market condition exists for a component of a complex strategy at the time of evaluation, complex orders or quotes that could have otherwise been executed will not be executed until the wide market condition no longer exists. When the wide market condition no longer exists, the System will again evaluate the Strategy Book and will use the process and criteria respecting the RIP as described in proposed Interpretations and Policies .03(c) to determine whether complex order interest exists to initiate a Complex Auction, or whether to commence trading in the complex strategy without a Complex Auction.
Proposed Rule 518, Interpretations and Policies .05(e)(1)(ii), describes how the System functions when there is a wide market condition during a Complex Auction. If, at the expiration of the Response Time Interval, a wide market condition exists for a component of a complex strategy in the Complex Auction, trading in the complex strategy will be suspended, and any RFR Responses will be cancelled. Remaining Complex Auction-eligible orders will then be placed on the Strategy Book. When the wide market condition no longer exists, the System will evaluate the Strategy Book pursuant to proposed Rule 518(c)(5)(ii), and will use the process and criteria respecting the RIP as described in proposed Interpretations and Policies .03(c) to determine whether complex order interest exists to initiate a Complex Auction, or whether to commence trading in the complex strategy without a Complex Auction.
Proposed Rule 518, Interpretations and Policies .05(e)(2) sets forth the functionality of the System if a Simple Market Auction or Timer (“SMAT”) Event (defined above as a PRIME Auction, a Route Timer, or a liquidity refresh pause)
Proposed Rule 518, Interpretations and Policies .05(e)(3) describes the System's functionality when there is a halt in trading for the underlying security or a component of a complex order. If a trading halt exists for the underlying security or a component of a complex strategy, trading in the complex strategy will be suspended.
The Strategy Book will remain available for members to enter and manage complex orders and quotes. Incoming complex orders and quotes that could otherwise be executed or initiate a Complex Auction in the absence of a halt will be placed on the Strategy Book. Incoming complex orders and quotes with a time in force of IOC will be cancelled.
When trading in the halted component(s) and/or underlying security of the complex order resumes, the System will evaluate the Strategy Book as described in proposed Rule 518(c)(2)(i), and will use the process and criteria respecting the IIP as described in proposed Rule 518, Interpretations and Policies .03(a) to determine whether complex order interest exists to initiate a Complex Auction, or whether to commence trading in the complex strategy without a Complex Auction.
Proposed Interpretations and Policies .05(e)(3)(ii) describes what happens when there is a halt during a Complex Auction. Unlike during a wide market condition or a SMAT Event, where a Complex Auction will end without trading at the end of the Response Time Interval, if during a Complex Auction any component or the underlying security of a Complex Auction-eligible order is halted, the Complex Auction will end early without trading
Another investor protection proposed by the Exchange is described in Interpretations and Policies .06 of proposed Rule 518, the MIAX Order Monitor for Complex Orders (“cMOM”).
The Exchange is also proposing to amend Exchange Rule 519A to state that complex orders will participate in the Risk Protection Monitor. The Risk Protection Monitor maintains a counting program for each participating Member that will count the number of orders entered and the number of contracts traded via an order entered by a Member on the Exchange within a specified time period that has been established by the Member, and will reject orders that exceed a Member-designated “Allowable Order Rate” and an “Allowable Contract Execution Rate.”
The Exchange proposes to adopt Rule 521(c)(5) to address the manner in which obvious errors in complex order transactions will be handled in situations where one or more components of a complex order is eligible to be adjusted or nullified pursuant to Exchange Rule 521(c)(4).
Specifically, if a complex order executes against another complex order on the Strategy Book and one or more components of the transaction is deemed eligible to be adjusted or nullified, the entire trade (all components) will be nullified, unless both parties agree to adjust the transaction to a different price within thirty (30) minutes of being notified by the Exchange of the decision to nullify the transaction. Additionally, if a complex order executes against orders or quotes on the Simple Order Book, each component of the complex order will be reviewed and handled independently in accordance with Exchange Rule 521.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The proposal adopts several defined terms related to the trading of complex orders. The Commission notes that MIAX's new definition of complex order
The Commission notes that MIAX states that it has designed its execution rules to allow complex orders to interact with interest in the Simple Order Book and vice versa.
MIAX proposes that complex orders will never be executed at a price that is outside of the individual component prices on the Simple Order Book.
As described more fully above, MIAX proposes to provide for the generation of derived orders on behalf of certain complex orders. The Commission believes that derived orders could facilitate the execution of complex orders on MIAX by increasing the opportunities for complex orders to execute against interest in the leg market, thereby benefitting investors seeking to execute complex orders. In addition, the Commission believes that derived orders could benefit participants in the leg market by providing additional liquidity, and potentially more favorable executions,
As described more fully above, MIAX proposes to provide for Legging of complex orders into the Simple Order Book. The Commission believes that Legging could benefit investors by providing additional execution opportunities for both complex orders and interest on the MIAX Book. In addition, the Commission believes that Legging could facilitate interaction between the Strategy Book and the Simple Order Book, potentially resulting in a more competitive and efficient market, and better executions for investors.
In addition, and as discussed above, MIAX is proposing to prohibit Legging for: (i) Complex orders with two option legs where both legs are buying or both legs are selling and both legs are calls or both legs are puts; and (ii) complex orders with three option legs where all legs are buying or all legs are selling regardless of whether the option leg is a call or a put.
MIAX has proposed Rule 518(d) to describe the Complex Auction Process. MIAX states that the auction process is designed to ensure that complex orders are given every opportunity to be executed at the best prices against an increased level of contra-side liquidity.
The Commission believes that the proposal to add Rule 518, Interpretations and Policies .01(a) to provide that stock-option orders will execute against other stock-option orders through the Strategy Book and Complex Auction is consistent with the Act because it could facilitate the execution of stock-option orders. The Commission notes that another options exchange similarly permits stock-option orders traded on its electronic trading platform to execute only against other stock-option orders.
As described more fully above, MIAX proposes to allow the Exchange to electronically communicate the stock leg of a stock-option order to a designated broker-dealer(s) for execution on behalf of a Member.
MIAX's proposal to electronically communicate the stock leg of a stock-option order to a designated broker-dealer for execution is similar to rules adopted by other options exchanges.
As described above, proposed Rule 518, Interpretations and Policies .01(c) states that the option leg(s) of a stock-option order shall not be executed (i) at a price that is inferior to the Exchange's best bid (offer) in the option or (ii) at the Exchange's best bid (offer) in that option if one or more Priority Customer Orders are resting at the best bid (offer) price on the Simple Order Book in each of the option components and the stock-option order could otherwise be executed in full (or in a permissible ratio). These provisions are consistent with the rules of other options exchanges.
Under the proposal, stock-option orders executed against other stock-option orders through a Complex Auction will trade in the sequence set forth in MIAX Rule 518(d), except that the provision regarding individual orders and quotes in the leg markets resting on the Simple Order Book prior to the initiation of a Complex Auction will not be applicable and such execution will be subject to the conditions set forth in MIAX Rule 518, Interpretations and Policies .01 regarding the price of the option leg(s), together with all applicable securities laws.
MIAX is proposing to allow Market Maker quotes to qualify as Market Maker Priority Interest for Complex. Under the proposal, and as described in more detail above, if complex Standard quoting is engaged for a complex strategy, a Market Maker complex Standard quote or complex eQuote will qualify as Market Maker Priority Interest for Complex if the Market Maker has a complex Standard quote in the complex strategy that equals or improves the dcMBBO on the opposite side from the incoming complex order or quote at the time of evaluation. According to MIAX, the Exchange's proposal to adopt Market Maker Priority Interest for Complex in the Strategy Book is substantially based
MIAX's proposed price and order protection features are intended to provide market participants with price and order size protection in order to allow them to better manage their risk exposure.
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 7, 2016, The Nasdaq Stock Market LLC (“Exchange” or “Nasdaq”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act” or “Act”)
This order provides notice of filing of Partial Amendment Nos. 1, 2 and 3, and approves the proposal, as modified by Partial Amendment Nos. 1, 2 and 3, on an accelerated basis.
The Exchange's proposed rule change provides for changed functionality to certain Order Types
The Exchange also proposes to amend the definition of the term “Trade-at Intermarket Sweep Order” (“TA ISO”) and one of the TA ISO exceptions to the Trade-at Prohibition.
The Exchange proposes that a Price to Comply Order in a Test Group Pilot Security would operate consistent with current Nasdaq Rule 4702(b)(1) except as provided below. Specifically, if a Price to Comply Order for a Test Group Three Pilot Security partially executes on entry and the remainder would lock the Protected Quotation of another market center, the unexecuted portion of the Order would be cancelled. In addition, if a Price to Comply Order for a Test Group Three Pilot Security to buy (sell) is not executable against any orders residing on the Nasdaq Book and its limit price would lock or cross the Protected Quotation of another market center, the Order would display at one MPI below (above) the Protected Quotation and be ranked at the current midpoint of the NBBO on the Nasdaq Book.
The Exchange proposes that a Non-Displayed Order in a Test Group Pilot Security would operate consistent with current Nasdaq Rule 4702(b)(3) except as provided below. Specifically, a resting Non-Displayed Order in a Test Group Three Pilot Security could not execute at the price of a Protected Quotation of another market center unless the incoming Order qualifies for an exception to the Trade-at Prohibition.
The Exchange proposes that Post-Only Orders will operate consistent with current Nasdaq Rule 4702(b)(4) except as provided below. Specifically, for a not attributable Post-Only Order for a Test Group Three Pilot Security, if the limit price to buy (sell) would lock or cross a Protected Quotation of another market center, the Order would display at one MPI below (above) the Protected Quotation and would be ranked at the current midpoint of the NBBO on the Nasdaq Book.
The Exchange proposes that a Midpoint Peg Post-Only Order in a Test Group Pilot Security will operate consistent with current Nasdaq Rule 4702(b)(5) and may execute at the midpoint of the NBBO in an increment other than the MPI.
The Exchange proposes that Supplemental Orders for Test Group One and Test Group Two Pilot Securities will operate consistent with current Nasdaq Rule 4702(b)(6). In addition, the Exchange proposes to not accept Supplemental Orders for Test Group Three Pilot Securities.
The Exchange proposes that a Market Maker Peg Order in a Test Group Pilot Security will operate consistent with current Nasdaq Rule 4702(b)(7), except the displayed price of such an Order would be rounded up for bids (down for offers) to the nearest MPI (
The Exchange proposes that an Order with a Midpoint Pegging attribute in a Test Group Pilot Security will operate consistent with current Nasdaq Rule 4703(d). The Exchange also specifies that such Orders may execute at the midpoint of the NBBO in an increment other than the MPI.
The Exchange proposes that an Order with Reserve Size in a Test Group Pilot Security will operate consistent with current Nasdaq Rule 4703(h) except as described below. Specifically, a resting Order with Reserve Size in a Test Group Three Pilot Security (
The Exchange proposes that an Order with a Time-in-Force of Good-till-Cancelled in a Test Group Pilot Security will operate consistent with current Nasdaq Rule 4703(a)(3) except such Order would be adjusted based on a $0.05 increment.
The Exchange proposes to add the phrase “or Intermarket Sweep Orders” (“ISO”) to the definition of TA ISO as well as to the related TA ISO exception to the Trade-at Prohibition
Currently, Nasdaq Rule 4770(c)(3)(D)(iii)(c) provides an exception to the Trade-at Prohibition for Block Size Orders.
Both comment letters express support for the proposal 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 the Exchange would be able to meet the 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 the Commission staff's authority.
After careful review of the proposed rule change, as modified by Partial Amendment Nos. 1, 2 and 3, and the comment letters, the Commission finds that the proposal, as modified by Partial Amendment Nos. 1, 2 and 3, 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 to modify its handling of certain Order Types and Order Attributes during the Pilot Period. First, the Exchange proposes to clarify that it will not accept Orders in a Test Group Pilot Security in an increment other than $0.05 unless there is an applicable exception to the MPI. Second, the Exchange proposes to clarify that the displayed price of Market Maker Peg Orders for any Test Group Pilot Security would be rounded to the nearest MPI and that Good-till-Cancelled Orders for a Test Group Pilot Security would be adjusted based on the $0.05 increment. Finally, the Exchange proposes to clarify that Midpoint Peg Post-Only Orders and Orders with the Midpoint Pegging Attribute in a Test Group Pilot Security may execute at the midpoint of the NBBO in an increment other than the MPI.
The Exchange also proposes to modify the handling of certain Orders and Order Attributes in Test Group Three Pilot Securities, including: (i) Price to Comply Orders, (ii) Non-Displayed Orders, (iii) Post-Only Orders; (iv) Supplemental Orders, and (v) Orders
Finally, the Exchange proposes to amend provisions related to two exceptions to the Trade-at Prohibition. First, the Exchange proposes to amend the definition of TA ISO 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 applicable Trade-at Prohibition exception. Second, the Exchange proposes to amend the Trade-at Prohibition exception for Block Size Orders to allow such Orders to be executed on multiple Trading Centers. Further, the Exchange proposes that for purposes of the Block Size Order exception to the Trade-at Prohibition, the Order must have a size of 5,000 shares and the resulting execution upon entry must have a size of 5,000 shares or more in aggregate.
The Commission believes that the proposed changes are reasonably designed to comply with the Plan. Further, the Commission believes that the proposed changes that target particular Test Groups are necessary for compliance with the Plan.
For these reasons, the Commission finds that the proposed rule change, as modified by Partial Amendment Nos. 1, 2 and 3, is consistent with the requirements of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal, as modified by Partial Amendment Nos. 1, 2 and 3, is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
The Commission finds good cause to approve the proposed rule change, as modified by Partial Amendment Nos. 1, 2 and 3, prior to the thirtieth day after the date of publication of notice of the proposed rule change, as modified by Partial Amendment Nos. 1, 2 and 3 in the
It is therefore ordered that, pursuant to Section 19(b)(2) of the Exchange 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 (the “Act”),
The Exchange filed a proposal to amend the fee schedule applicable to Members
The text of the proposed rule change is available at 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 parts of such statements.
The Exchange proposes to modify its fee schedule applicable to the Exchange's options platform (“BZX Options”) to: (i) Modify the Professional Penny Pilot Add Volume Tiers under footnote 9; (ii) remove fee codes PA and NA from footnote 4, NBBO Setter Tiers; (iii) modify the criteria for Tier 5 under footnote 1, Customer Penny Pilot Add; (iv) modify the criteria for the Tier 1 under footnote 3, Non-Customer Penny Pilot Take Volume; and (v) modify the criteria for Tier 1 under footnote 13, Non-Customer Non-Penny Pilot Take Volume.
The Exchange is proposing to add two new tiers under footnote 9, Professional Penny Pilot Add Volume Tiers,
The Exchange is also proposing to modify the criteria necessary to qualify for the Professional Penny Pilot Add Volume Tier 1 and to increase the rebate provided under both Professional Penny Pilot Add Volume Tier 1 and Tier 2 under footnote 9. Currently under Tier 1, a Member must have an ADV
Under Tier 2 the Exchange presently provides a rebate of $0.43 for Members who have a combined ADAV in Customer and Professional orders equal to or greater than 0.20% of average TCV. The Exchange is proposing to increase the rebate under Tier 2 to $0.44. In addition, in order to ensure consistent terminology throughout footnote 9, the Exchange proposes to modify the description of Tier 2 to eliminate the reference to “combined” such that the Tier will apply when a Member has an ADAV in Customer and Professional orders equal to or greater than 0.20% of average TCV. The Exchange believes the use of the word “combined” in this case is unnecessary and inconsistent with other portions of the fee schedule.
The Exchange's NBBO Setter Program is a program intended to incentivize aggressive quoting on BZX Options by providing an additional rebate upon execution for all orders that add liquidity that set either the national best bid (“NBB”) or national best offer (“NBO”), subject to certain volume requirements. The Exchange currently operates four NBBO Setter Tiers that provide an additional rebate of either $0.02, $0.03 or $0.04 per contract to orders from qualifying Members that submit orders that yield fee codes PA, PF, PM, [sic] NA, NF, NM or NN.
The Exchange does not propose to modify the criteria necessary to qualify for the NBBO Setter Tiers or the rebates provided thereunder, however the Exchange does propose to limit the applicability of Tier 1 through Tier 4 to fee codes PF, PM, PN, NF, NM, and NN. Thus, NBBO Setter Tiers rebates would no longer be provided to orders yielding fee codes PA or NA. The Exchange also proposes to eliminate references to
The Exchange currently offers a total of eight tiers under footnote 1, Customer Penny Pilot Add Tiers, which provide rebates for Customer orders in Penny Pilot Securities that add liquidity to BZX Options and yield fee code PY. The Exchange proposes to update the required criteria for Customer Add Volume Tier 5 under footnote 1 as set forth below.
Presently under Tier 5, the Exchange provides a rebate of $0.53 per contract for a Customer order where a Member: (1) Has an ADAV in Customer orders equal to or greater than 0.60% of average TCV; (2) has an ADAV in Market Maker
The Exchange currently offers a total of three tiers under footnote 3, Non-Customer Penny Pilot Take Volume Tiers, which provide discounted fees for Non-Customer orders in Penny Pilot Securities that remove liquidity from BZX Options under fee code PP. The Exchange proposes to update the required criteria for Tier 1, as set forth below.
The Exchange currently charges $0.44 per contract for Members that qualify for Non-Customer Volume Tier 1, which requires that a Member has (1) an ADAV in Customer orders equal to or greater than 0.60% of average TCV; (2) an ADAV in Market orders equal to or greater than 0.30%; and (3) on BZX Equities an ADAV equal to or greater than 0.30% of average TCV. The Exchange proposes to modify the second prong of these criteria to decrease the ADAV threshold in Market Maker orders from 0.30% to 0.25%.
The Exchange presently offers a total of three tiers under footnote 13, Non-Customer Non-Penny Pilot Take Volume Tiers,
Currently, the Exchange charges $1.02 per contract for Members that qualify for Non-Customer Take Volume Tier 1, which requires that a Member has (1) an ADAV in Customer orders equal to or greater than 0.60% of average TCV; (2) an ADAV in Market Maker orders equal to or greater than 0.30% of average TCV; and (3) on BZX Equities an ADAV equal to or greater than 0.30% of average TCV. The Exchange is proposing to modify the second prong of these criteria to decrease the ADAV threshold in Market Maker orders from 0.30% to 0.25%.
The Exchange proposes to implement these amendments to its fee schedule as of October 3, 2016.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6 of the Act.
Volume-based rebates such as those currently maintained on the Exchange have been widely adopted by equities and options exchanges and are equitable because they are open to all Members on an equal basis and provide additional benefits or discounts that are reasonably related to the value to an exchange's market quality associated with higher levels of market activity, such as higher levels of liquidity provision and/or growth patterns, and introduction of higher volumes of orders into the price and volume discovery processes.
The Exchange believes that its proposal to add two new Professional Penny Pilot Add Volume Tiers and update the required criteria and rebate amounts for Tier 1 and Tier 2 under footnote 9 is reasonable, fair and equitable and non-discriminatory, for the reasons set forth above with respect to volume-based pricing generally. In addition, the Exchange believes the amount of the proposed rebates offered under the new Professional Penny Pilot Add Volume Tiers, Tier 3 and Tier 4, are equitable and reasonable because they are generally in line with the proposed rebates offered pursuant to Professional Penny Pilot Add Volume Tier 1 and Tier 2. The Exchange believes that the proposed tiers are reasonable, fair and equitable, and non-discriminatory because they, like the Professional Penny Pilot Add Volume Tier generally, are aimed to incentivize active participation on the Exchange.
The Exchange believes that its proposal to remove fee codes PA and NA from footnote 4, NBBO Setter Tiers, is reasonable, fair and equitable and non-discriminatory, because the proposal coincides with the addition of new volume tiers and enhanced rebates for transactions that yield fee code PA. Thus, although Professional orders will no longer be able to qualify for NBBO Setter Tiers, there are additional ways to receive enhanced rebates and such rebates have also been increased. Similar to the pricing tiers discussed above, the Exchange believes this incentive is reasonably related to the value to the Exchange's market quality associated with higher levels of market activity, including liquidity provision and the introduction of higher volumes of orders into the price and volume discovery processes.
The proposed modifications to the criteria required to qualify for current Customer (Penny Pilot) Add Tier 5, Non-Customer (Penny Pilot) Take Volume Tier 1, and Non-Customer (Non-Penny Pilot) Take Volume Tier 1, are intended to incentivize additional Members to send Customer orders and/or Market Maker orders to the Exchange in an effort to qualify for the enhanced rebate or lower fee made available by the tiers. The Exchange believes that the proposal to require that the Member have an ADAV in Market Maker orders equal to or greater than 0.25% of average TCV under all three tiers is a reasonable, fair and equitable, and not unfairly discriminatory allocation of fees and rebates because it will make it easier to qualify for enhanced rebates or reduced fees pursuant to such tiers. The
The Exchange believes the proposed amendments to its fee schedule would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange has designed the proposed amendments to its fee schedule in order to enhance its ability to compete with other exchanges. Also, the Exchange believes that the addition of volume-tiered rebates by the Exchange contributes to rather than burdens competition, as such changes are intended to incentivize participants to increase their participation on the Exchange. Similarly, the modifications to criteria applicable to existing volume-tiered rebates and fees are intended to provide incentives to Members to encourage them to enter orders to the Exchange, and thus are intended to enhance competition.
Additionally, Members may opt to disfavor the Exchange's pricing if they believe that alternatives offer them better value. Accordingly, the Exchange does not believe that the proposed change will impair the ability of Members or competing venues to maintain their competitive standing in the financial markets. Additionally, Members may opt to disfavor the Exchange's pricing if they believe that alternatives offer them better value. Accordingly, the Exchange does not believe that the proposed changes to the Exchange's tiered pricing structure burdens competition, but instead, enhances competition as it is intended to increase the competitiveness of the Exchange. Also, the Exchange believes that the price changes contribute to, rather than burden competition, as such changes are broadly intended to incentivize participants to increase their participation on the Exchange, which will increase the liquidity and market quality on the Exchange, which will then further enhance the Exchange's ability to compete with other exchanges.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any written comments from members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 7, 2016, NASDAQ BX, Inc. (“Exchange” or “BX”) filed with the Securities and Exchange Commission (“SEC” or “Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act” or “Act”)
This order provides notice of filing of Partial Amendment Nos. 1 and 3, and approves the proposal, as modified by Partial Amendment Nos. 1 and 3, on an accelerated basis.
The Exchange's proposed rule change provides for changed functionality to certain Order Types
The Exchange also proposes to amend the definition of the term “Trade-at Intermarket Sweep Order” (“TA ISO”) and one of the TA ISO exceptions to the Trade-at Prohibition.
The Exchange proposes that a Price to Comply Order in a Test Group Pilot Security would operate consistent with current BX Rule 4702(b)(1) except as provided below. Specifically, if a Price to Comply Order for a Test Group Three Pilot Security partially executes on entry and the remainder would lock the Protected Quotation of another market center, the unexecuted portion of the Order would be cancelled. In addition, if a Price to Comply Order for a Test Group Three Pilot Security to buy (sell) is not executable against any orders residing on the Exchange Book and its limit price would lock or cross the Protected Quotation of another market center, the Order would display at one MPI below (above) the Protected
The Exchange proposes that a Non-Displayed Order in a Test Group Pilot Security would operate consistent with current BX Rule 4702(b)(3) except as provided below. Specifically, a resting Non-Displayed Order in a Test Group Three Pilot Security could not execute at the price of a Protected Quotation of another market center unless the incoming Order qualifies for an exception to the Trade-at Prohibition.
The Exchange proposes that Post-Only Orders will operate consistent with current BX Rule 4702(b)(4) except as provided below. Specifically, for a not attributable Post-Only Order for a Test Group Three Pilot Security, if the limit price to buy (sell) would lock or cross a Protected Quotation of another market center, the Order would display at one MPI below (above) the Protected Quotation and would be ranked at the current midpoint of the NBBO on the Exchange Book.
The Exchange proposes that Retail Price Improving Orders for Test Group Pilot Securities will operate consistently with current BX Rule 4702(b)(5) except as provided below. Specifically, a Retail Price Improving Order for a Test Group Two or Test Group Three Pilot Security must be entered in a MPI of $0.005 and will only execute against Retail Orders if its price is at least $0.005 better than the NBBO.
The Exchange proposes that Retail Orders for Test Group Pilot Securities will operate consistently with current BX Rule 4702(b)(6) except as provided below. Specifically, a Retail Order in a Test Group One Pilot Security must be entered with a limit price in a MPI and may execute in an increment other than a MPI if the order is provided price improvement of at least $0.001 better than the NBBO. In addition, a Retail Order in a Test Group Two or Test Group Three Pilot Security must be entered in a MPI and may execute in an increment other than a MPI if the order is provided price improvement that is at least $0.005 better than the NBBO.
The Exchange proposes that a Market Maker Peg Order for Test Group Pilot Securities will operate consistent with current BX Rule 4702(b)(7) except the displayed price of such an Order would be rounded up for bids (down for offers) to the nearest MPI (
The Exchange proposes that an Order with a Midpoint Pegging attribute in a Test Group Pilot Security will operate consistent with current BX Rule 4703(d). The Exchange also specifies that such Orders may execute at the midpoint of the NBBO in an increment other than the MPI.
The Exchange proposes that an Order with Reserve Size in a Test Group Pilot Security will operate consistent with current BX Rule 4703(h) except as described below. Specifically, a resting Order with Reserve Size in a Test Group Three Pilot Security (
The Exchange proposes that an Order with a Time-in-Force of Good-till-Cancelled in a Test Group Pilot Security will operate consistent with current BX Rule 4703(a)(3) except such Order would be adjusted based on a $0.05 increment.
The Exchange proposes to add the phrase “or Intermarket Sweep Orders” (“ISO”) to the definition of TA ISO as well as to the related TA ISO exception to the Trade-at Prohibition
Currently, BX Rule 4770(c)(3)(D)(iii)(c) provides an exception to the Trade-at Prohibition for Block Size Orders.
Both comment letters express support for the proposal 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 the Exchange would be able to meet the 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 the Commission staff's authority.
After careful review of the proposed rule change, as modified by both Partial Amendment Nos. 1 and No. 3, and the comment letters, the Commission finds that the proposal, as modified by Partial Amendment Nos. 1 and 3, 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 to modify its handling of certain Order Types and Order Attributes during the Pilot Period. First, the Exchange proposes to clarify that it will not accept Orders in a Test Group Pilot Security in an increment other than $0.05 unless there is an applicable exception to the MPI. Second, the Exchange proposes to clarify that the displayed price of Market Maker Peg Orders for any Test Group Pilot Security would be rounded to the nearest MPI and that Good-till-Cancelled Orders for a Test Group Pilot Security would be adjusted based on the $0.05 increment. Finally, the Exchange proposes to clarify that Orders with Midpoint Pegging Attribute in a Test Group Pilot Security may execute at the midpoint of the NBBO in an increment other than the MPI.
The Exchange clarifies the operation of Retail Price Improving Orders in Test Group Two and Test Group Three Pilot Securities. In addition, the Exchange proposes to clarify how Retail Orders for Test Group One Pilot Securities must be entered in the $0.05 MPI but may execute in an increment other than a MPI if it is provided with price improvement of at least $0.001. Retail Orders in Test Group Two and Test Group Three Pilot Securities must be entered in a MPI and may execute in an increment other than the $0.05 if the Order is provided with price improvement of at least $0.005 better than the NBBO.
The Exchange also proposes to modify the handling of certain Orders and Order Attributes in Test Group Three Pilot Securities, including: (i) Price to Comply Orders; (ii) Non-Displayed Orders; (iii) Post-Only Orders; and (iv) Orders with Reserve Size. The proposed changes are intended to facilitate compliance with the Trade-at Prohibition.
Finally, the Exchange proposes to amend provisions related to two exceptions to the Trade-at Prohibition. First, the Exchange proposes to amend the definition of TA ISO 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 applicable Trade-at Prohibition exception. Second, the Exchange proposes to amend the Trade-at Prohibition exception for Block Size Orders to allow such Orders to be executed on multiple Trading Centers. Further, the Exchange proposes that for purposes of the Block Size Order exception to the Trade-at Prohibition, the Order must have a size of 5,000 shares and the resulting execution upon entry must have a size of 5,000 shares or more in aggregate.
The Commission believes that the proposed changes are reasonably designed to comply with the Plan. Further, the Commission believes that the proposed changes that target particular Test Groups are necessary for compliance with the Plan.
For these reasons, the Commission finds that the proposed rule change, as modified by Partial Amendment Nos. 1
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal, as modified by Partial Amendment Nos. 1 and 3, is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
The Commission finds good cause to approve the proposed rule change, as modified by Partial Amendment Nos. 1 and 3, prior to the thirtieth day after the date of publication of notice of the proposed rule change, as modified by Partial Amendment Nos. 1 and 3 in the
It is therefore ordered that, pursuant to Section 19(b)(2) of the Exchange 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”),
The Exchange proposes to delete outdated or unnecessary rule language contained in Rule 1020, Registration and Functions of Options Specialists, section (b) and Commentary .01 through .06.
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.
Exchange Rule 1020 contains provisions relating to registration and functions of options specialists.
The Exchange is therefore proposing to delete obsolete and unnecessary language from section (b) and from Commentary .01 through Commentary
Rule 1020 provides that, as a condition of being registered as a specialist in one or more options, a member has an obligation to assist in the maintenance of a fair and orderly market. The rule currently provides that this obligation exists for a specialist “in addition to the execution of orders entrusted him in such options.” The Exchange is deleting the language regarding execution of entrusted orders. Specialists no longer manually handle or execute others' orders due to the Exchange's migration to a new electronic trading system (“Phlx XL II”) in 2009.
Commentary .01 applies to transactions of a specialist for his own account that establish or increase a position. It provides that in “effecting transactions” for his own account for the purpose of establishing or increasing a position, a specialist is to effect such transactions in a reasonable and orderly manner in relation to the condition of the general market, the market in the particular option and the adequacy of his position to the immediate and reasonably anticipated needs of the options market. It provides that the following types of transactions to establish or increase a position are not to be effected except when they are reasonably necessary to render the specialist's position adequate to such needs: (a) A purchase at a price above the last sale in the same trading session; (b) the purchase of all or substantially all the options offered on the book at a price equal to the last sale, when the option so offered represents all or substantially all the options offered in the market; and when a substantial amount of an option is offered at a price equal to the last sale price, the purchase of more than 50% of all the options offered at the last sale price; (c) the supplying of all or substantially all the options bid for on the book at a price equal to the last sale, when the option so bid for represents all or substantially all the options bid for in the market; and when a substantial amount of the options bid for at a price equal to the last sale price, the supplying of more than 50% of all the options bid for at the last sale price; (d) failing to re-offer or re-bid where necessary after effecting transactions described in (a), (b), or (c). The rule permits transactions of these types to be effected, however, with the approval of an Options Exchange Official or in relatively inactive markets where they are an essential part of a proper course of dealings and where the amount of an option involved and the price change, if any, are normal in relation to the market.
The Exchange proposes to delete the last sentence of Commentary .01, and sections (a) through (d) of Commentary .01, because a specialist is unable to comply with its requirements given the way trading is conducted today in the PHLX XL trading system. Specialists today only rarely “effect transactions” in the sense of matching bids and offers to cause an execution to occur. Rather, they submit bids and offers to be matched. Although a specialist may “effect transactions” with a market maker on the Exchange's trading floor, the vast majority of transactions are executed electronically by the trading system and the specialist may be unable to determine the price of the last sale which would be required to comply with the language being deleted. Thus, for example, given electronic quoting and the absence of specialist control over the book, there is no way a specialist can guarantee that a purchase is at a price above the last sale in the same trading session. Because he will not know the price at which trading will occur, he cannot comply with Commentary .01 (a)—(d).
Although these tick-based rules may have been appropriate for and worked well in a market where substantially all trading was conducted manually, at a pace that enabled individuals to discern “tick” changes easily and which tolerated the time it took to call an Options Exchange Official into the crowd to approve a particular specialist's transaction, they are inappropriate now where trading is substantially electronic and the speed and frequency of executions and quote changes preclude individuals from being able to accurate track “ticks” or stop trading to allow for Options Exchange Official involvement.
Commentary .02 applies to transactions of a specialist for his own account that liquidate or decrease his position in an option in which he is registered. It provides that such transactions are to be “effected” in a reasonable and orderly manner in relation to the condition of the general market, the market in the particular option and the adequacy of the specialist's positions to the immediate and reasonably anticipated needs of the options market. It also provides that, in this connection, unless he has the prior approval of an Options Exchange Official, he should avoid: (a) Liquidation of all or substantially all of a position by selling options at prices below the last different price or by purchasing options at prices above the last different price unless such transactions are reasonably necessary in relation to the specialist's overall position in the options in which he is registered; (b) failing to maintain a fair and orderly market during liquidations;
The Exchange proposes to delete part of the last sentence of Commentary .02 as well as sections (a) through (c) of Commentary .02. The Exchange believes that while these rules may have made sense when they were adopted, changes in market structure and technology in the succeeding decades, such as the shift to trading in penny increments, dispersion of order flow to multiple competing market centers, consolidation and availability of market data, and enhancements in trading, communications and surveillance technology have made these rules anticompetitive anachronisms.
As discussed above, given the way trading is conducted today in the PHLX XL trading system, a specialist may be unable to determine the “last different price” as required to comply with section (a). Section (b) is being deleted as redundant of Rule 1020(b) which already contains the “fair and orderly” requirement. Section (c) is being deleted because it depends on Section (a) which is being deleted as discussed above. Finally, the NOM rules do not contain comparable provisions with respect to market makers.
Commentary .03 provides that a specialist's quotation, made for his own account, should be such that a transaction effected at his quoted price or within the quoted spread, whether having the effect of reducing or increasing the specialist's position, would bear a proper relation to preceding transactions and anticipated succeeding transactions. The Exchange proposes to delete Commentary .03 because given the speed of trading that occurs today on the Phlx XL trading system, a specialist may not have knowledge of the preceding transactions to which his quotation would relate, much less any anticipated succeeding transactions. Without affecting his liquidity, the specialist cannot possibly look at every single transaction, nor can he know how the transactions relate to one another. Prior to the advent of electronic trading, a specialist would announce his quote verbally, which was a very slow process. Today, a specialist would not be able to adjust quotes as needed to comply with Commentary .03 before the quotes are accessed.
The NOM rules do not contain comparable provisions with respect to market makers. The language is an unnecessary and anticompetitive burden on Phlx specialists, because market makers on NOM which fulfill a comparable role to Phlx specialists are not subject to a comparable requirement.
Commentary .04 applies to opening or reopening an option. It provides that a specialist should avoid participating as a dealer in opening or reopening an option in such a manner as to reverse the balance of public supply and demand as reflected by market and limited price orders at or near the price of the previous close or halt, unless the condition of the general market or the specialist's position in light of the reasonably anticipated needs of the market make it advisable to do so, or unless the specialist has obtained the prior approval of an Options Exchange Official to do so. The rule provides that he may, however, buy or sell an option as a dealer to minimize the disparity between supply and demand at an opening or reopening. The Exchange proposes to delete Commentary .04 in its entirety because the Specialist no longer manually opens options classes. Rather, the PHLX XL trading system handles the opening and re-opening of options in accordance with Phlx Rule 1017. While the Specialist is required to provide a quote, he or she is no more involved in resolving imbalances than any other market maker. All aspects of the opening are done automatically by the system.
Commentary .05 prohibits a member acting as a specialist from effecting transactions for the purpose of adjusting a LIFO inventory in an option in which he is so acting except as a part of a course of dealings reasonably necessary to assist in the maintenance of a fair and orderly market. This rule largely tracks former NYSE rule 104.13 which was designed to prevent year-end purchases or sales for the purpose of obtaining tax advantages under the LIFO system of valuing inventory.
The Exchange proposes to delete Commentary .05 in its entirety because the Exchange believes it is unnecessary. The NOM rules do not contain a comparable provision for market makers. Additionally, the Exchange was unable to locate a comparable Chicago Board Options Exchange (“CBOE”) rule. The language is an unnecessary and anticompetitive burden on Phlx specialists, because market makers on NOM which fulfill a comparable role to Phlx specialists are not subject to a comparable requirement.
Commentary .06 provides that under certain circumstances a specialist may assign options in which he is registered to an investment account. Purchases creating or adding to a position in an investment account may not be made unless reasonably necessary to permit the specialist to assist in the maintenance of a fair and orderly market. The Exchange is deleting this sentence because it believes it is not necessary. Specialists have their “specialist account.” Any executions on their quotes are placed into their specialist accounts. While an “investment account” may have played a role in early days of trading, the Exchange is unaware today of what such an account might consist of or its purpose—consequently, the Exchange perceives no need to regulate it or fashion rules around it.
Commentary .06 states that in the maintenance of price continuity with reasonable depth, it is commonly desirable for a specialist to supply options to the market, even though he may have to sell short to do so, to the extent reasonably necessary to meet the needs of the market. This sentence is being deleted because the Exchange believes its rules should not include statements of “desirable” behavior.
Finally, Commentary .06 provides that a specialist may not effect a transfer of options in which he is registered from his dealer account to an investment account if the transfer would result in creating a short position in the dealer account. This Exchange is deleting this sentence because it is unnecessary, for the reasons specified above relating to investment accounts.
The NOM rules do not contain provisions comparable to the provisions of Commentary .06 with respect to its market makers. The language is an unnecessary and anticompetitive burden on Phlx specialists, because market makers on NOM which fulfill a comparable role to Phlx specialists are not subject to comparable requirements.
The Exchange believes that its proposal is consistent with Section 6(b)
Specifically, the deletion of a portion of the Rule 1020 Section (b) and Commentary provisions discussed above is consistent with the Act because this rule language is operationally obsolete, as explained above; moreover, having clear and up to date rules should promote just and equitable principles of trade on the Exchange. The proposal should result in a more accurate and understandable rule book, particularly for Exchange specialists who no longer operate a book or handle orders manually. The Exchange's goal with respect to the deletion of language is to ensure that the rulebook accurate reflects member obligations in the context of how trading takes place on the Exchange today, which should protect investors and the public interest. The Exchange's proposal will also delete unnecessary provisions that, because they are not present in the NOM rulebook with respect to market makers, represent an anticompetitive burden on Phlx specialists as discussed above.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Removing unnecessary regulatory burdens should enhance a Phlx specialist's ability to compete with market makers on Phlx and on other exchanges who are not burdened with similar requirements.
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 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.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of FLORIDA (FEMA-4280-DR), dated 09/28/2016.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Florida, dated 09/28/2016, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a notice of the Military Reservist Economic Injury Disaster Loan Program (MREIDL), dated 10/01/2016.
10/01/2016.
1 year after the essential employee is discharged or released from active duty.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of Public Law 106-50, the Veterans entrepreneurship and Small Business Development Act of 1999, and the Military Reservist and Veteran Small Business Reauthorization Act of 2008, this notice establishes the application filing period for the Military Reservist Economic Injury Disaster Loan Program (MREIDL). Effective 10/01/2016, small businesses employing military reservists may apply for economic injury disaster loans if those employees are called up to active duty during a period of military conflict or have received notice of an expected call-up, and those employees are essential to the success of the small business daily operations.
The purpose of the MREIDL program is to provide funds to an eligible small business to meet its ordinary and necessary operating expenses that it could have met, but is unable to meet, because an essential employee was called-up or expects to be called-up to active duty in his or her role as a military reservist. These loans are intended only to provide the amount of working capital needed by a small business to pay its necessary obligations as they mature until operations return to normal after the essential employee is released from active duty. For information/applications contact 1-800-659-2955 or visit
Applications for the Military Reservist Economic Injury Disaster Loan Program may be filed at the above address.
The number assigned is 14890 0.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Mississippi dated 10/06/2016.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14903 B and for economic injury is 14904 0.
The States which received an EIDL Declaration # are Mississippi; Louisiana.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of IOWA (FEMA-4281-DR), dated 09/29/2016.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14905B and for economic injury is 14906B.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of North Carolina dated 10/05/2016.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14893 B and for economic injury is 14894 0.
The State which received an EIDL Declaration # is North Carolina.
By virtue of the authority vested in me as Deputy Secretary of State by Department of State Delegation of Authority 245-1, and pursuant to section 7045(a)(3)(B) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2016 (Div. K, Pub. L. 114-113), I hereby certify that the central government of Honduras is taking effective steps to:
• Establish an autonomous, publicly accountable entity to provide oversight of the Plan [of the Alliance for Prosperity in the Northern Triangle of Central America];
• Combat corruption, including investigating and prosecuting government officials credibly alleged to be corrupt;
• Implement reforms, policies, and programs to improve transparency and strengthen public institutions, including increasing the capacity and independence of the judiciary and the Office of the Attorney General;
• Establish and implement a policy that local communities, civil society organizations (including indigenous and other marginalized groups), and local governments are consulted in the design, and participate in the implementation and evaluation of, activities of the Plan that affect such communities, organizations, and governments;
• Counter the activities of criminal gangs, drug traffickers, and organized crime;
• Investigate and prosecute in the civilian justice system members of military and police forces who are credibly alleged to have violated human rights, and ensure that the military and police are cooperating in such cases;
• Cooperate with commissions against impunity, as appropriate, and with regional human rights entities;
• Support programs to reduce poverty, create jobs, and promote equitable economic growth in areas contributing to large numbers of migrants;
• Establish and implement a plan to create a professional, accountable civilian police force and curtail the role of the military in internal policing;
• Protect the right of political opposition parties, journalists, trade unionists, human rights defenders, and other civil society activists to operate without interference;
• Increase government revenues, including by implementing tax reforms and strengthening customs agencies; and
• Resolve commercial disputes, including the confiscation of real property, between United States entities and such government.
This certification shall be published in the
In accordance with section 4314(c)(4) of 5 United States Code, the Department of State has appointed the following individuals to the Department of State Performance Review Board for Senior Executive Service members:
Elkhart & Western Railroad Co. (EWR), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to continue to lease and operate approximately 23.0 miles of rail line from Norfolk Southern Railway Company (NSR) between MP I 108.6 +/− (at Argos, Ind.) to MP I 131.6 +/− (at Walkerton, Ind.) (the Line).
According to EWR, it first entered into a lease agreement (Original Agreement) with NSR in 2010.
According to EWR, it will continue to interchange traffic with NSR at a track in the vicinity of the Argo Yard. EWR states that the Original Agreement, as modified by the 1st Agreement Amendment, does not prohibit or limit EWR from interchanging with third-party connecting carriers that connect to the Line, nor does the modified agreement set forth terms governing EWR's interchange of traffic with such third-party carriers. According to EWR, the Original Agreement, as modified by the 1st Agreement Amendment, contains a provision specifically permitting EWR unrestricted interchange with other carriers. However, EWR certifies that the Original Agreement, as modified by the 1st Agreement Amendment, does contain lease credits, a type of interchange commitment. As required under 49 CFR 1150.43(h)(1), EWR has disclosed in its verified notice that the Original Agreement, as modified by the 1st Agreement Amendment, affects the interchange point of MP I 131.6 +/− (at Walkerton, Ind.) and MP 118.3 (at Plymouth, Ind.). EWR has also provided additional information regarding the interchange commitment.
EWR also certifies that the projected annual revenues do not exceed those that would qualify it as a Class II or Class I rail carrier and would not exceed $5 million.
The proposed transaction may be consummated on October 29, 2016, the effective date of the exemption (30 days after the verified notice of exemption was filed). If the 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 to stay must be filed no later than October 21, 2016 (at least seven days before the exemption becomes effective.)
An original and ten copies of all pleadings, referring to Docket No. FD 35347 (Sub-No. 1), 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, William A. Mullins, Baker & Miller PLLC, 2401 Pennsylvania Ave. NW., Suite 300, Washington, DC 20037.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Soo Line Railroad Company d/b/a Canadian Pacific (Soo Line) has filed a verified notice of exemption under 49 CFR part 1152 subpart F—
Soo Line has certified that: (1) No local traffic has moved over the Line for at least two years: (2) any overhead traffic can be and has been rerouted over other lines; (3) no formal complaint filed by a user of rail service on the Line (or a State or local government entity acting on behalf of such user) regarding cessation of service over the Line either is pending with the Board or any U.S. District Court or has been decided in favor of a complainant within the two-year period; and (4) the requirements at 49 CFR 1105.7(c) (environmental report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on November 15, 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 Soo Line'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.
Soo Line 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 21, 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), Soo Line 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 Soo Line's filing of a notice of consummation by October 14, 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.
The Indiana Rail Road Company (INRD), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1180.2(d)(7) for its acquisition of trackage rights over a line of railroad of CSX Transportation, Inc. (CSXT) between approximately milepost OZA 204.5 at Sullivan, Ind., and milepost OZA 219.05 at Oaktown, Ind., a distance of approximately 14.55 miles (the Line).
INRD states that, pursuant to a May 15, 2008 trackage rights agreement and two subsequent supplements to that agreement, dated as of August 1, 2009, and November 20, 2009, INRD holds trackage rights over CSXT's rail line from Sullivan to Carlisle and Oaktown, Ind.,
Pursuant to a written Supplemental Agreement No. 6 (Agreement) dated September 1, 2016,
The transaction may be consummated on or after October 29, 2016, the effective date of the exemption (30 days after the verified notice was filed).
As a condition to this exemption, any employees affected by the acquisition of the trackage rights will be protected by the conditions imposed in
If the 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 21, 2016 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 36068, 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 Thomas J. Litwiler, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 920, Chicago, IL 60606.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
The New Orleans Public Belt Railroad (NOPB), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1180.2(d)(8) for its acquisition of temporary overhead trackage rights over a line of railroad of the Illinois Central Railroad Company (IC), over two segments of IC's rail lines as follows: (1) IC's McComb Subdivision, between IC's connection with the Kansas City Southern Railway Company (KCS) at or near IC milepost 906.4 at East Bridge Junction in Shrewsbury, La., and IC milepost 900.8 at Orleans Junction in New Orleans, La. (approximately 5.6 miles), and (2) IC's Baton Rouge Subdivision, between IC milepost 444.2 at Orleans Junction and IC milepost 443.5 at Frellsen Junction in New Orleans, La. (approximately 0.7 miles), a total distance of approximately 6.3 miles the Line).
NOPB states that, pursuant to a written trackage rights agreement (Agreement) dated September 16, 2016,
As a condition to this exemption, any employees affected by the acquisition of the temporary trackage rights will be protected by the conditions imposed in
This notice is filed under 49 CFR 1180.2(d)(8). 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 21, 2016 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 36067, 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, Audrey L. Brodrick, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 920, Chicago, IL 60606.
According to NOPB, 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.
WRL, LLC (WRL), a Class III carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to acquire from the City of Tacoma, Department of Public Works d/b/a Tacoma Rail (Tacoma Rail), approximately 34.6 miles of rail line between milepost 33C and milepost 67.6 in Lewis and Thurston Counties, Wash. (the Line). The Line is currently operated by Western Washington Railroad, LLC (WWRR).
According to WRL, it expects to enter into an agreement with Tacoma Rail on or about October 4, 2016, pursuant to which it will acquire the Line from Tacoma Rail. WRL states that WWRR will continue to be the operator of the Line. WRL also states that the proposed transaction does not involve any provision that prohibits, restricts, or would otherwise limit future interchange of traffic with any third-party carrier.
WRL certifies that, as a result of the proposed transaction, its projected revenues will not result in its becoming a Class I or Class II rail carrier and will not exceed $5 million.
WRL states that the parties intend to consummate the transaction immediately after the effective date of the exemption. The earliest this transaction may be consummated is October 30, 2016 (30 days after the verified notice of exemption was filed).
According to WRL, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic review under 49 CFR 1105.8(b).
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 21, 2016 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 36074, 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 James H.M. Savage, 22 Rockingham Court, Germantown, MD 20874.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Office of the United States Trade Representative.
Notice with request for comments.
The Office of the United States Trade Representative (USTR) is providing notice that on September 9, 2016, India requested consultations with the United States under the
Although USTR will accept any comments received during the course of the dispute settlement proceedings, you should submit your comment on or before November 25, 2016, to be assured of timely consideration by USTR.
You should submit written comments through the Federal eRulemaking Portal:
Robert Anderson, Associate General Counsel, Office of the United States Trade Representative, 600 17th Street NW., Washington DC 20508, (202) 395-7630.
USTR is providing notice that consultations have been requested pursuant to the WTO
On September 9 2016, India requested consultations concerning certain U.S. measures relating to domestic content requirements and subsidies instituted by the governments of the states of Washington, California, Montana, Massachusetts, Connecticut, Michigan, Delaware and Minnesota (collectively, US States), in the energy sector. India alleges that these domestic content requirements and subsidies are maintained under the following instruments.
1. Renewable Energy Cost Recovery Incentive Payment Program (RECIP) maintained under the authority of the Revised Code of Washington (RCW 82.16.110 through 82.16.130) and the Washington Administrative Code (WAC 458-20-273).
2. State of California Self-Generation Incentive Program (SGIP) under the California Public Utilities Code (Sections 360-380), as modified by the Senate Bill 412, and the SGIP Handbook 2015.
3. Los Angeles Department of Water and Power's (LADWP) Solar Incentive Program implemented by the LADWP under the Solar Photovoltaic (PV) Incentive Program Guidelines.
4. Montana Tax Incentive for Ethanol Production (TIEP) under the Ethanol Tax Incentive and Administration Act of 1983 (Montana Code Annotated 2015, Section 15-70-522).
5. Montana Tax Credit for Biodiesel Blending and Storage under Montana Code Annotated 2015, Section 15-32-703.
6. Refund for Taxes paid on Biodiesel by Distributor or Retailer under the Montana Code Annotated 2015, Section 15-70-433.
7. Massachusetts Clean Energy Centre's Commonwealth Solar Hot Water Program, (CSHWP) under Chapter 307 of the Acts of 2008 (Green Jobs Act of 2008), codified in Chapter 23J of the Massachusetts General Laws read with the Residential and Small Scale Solar Hot Water Program Manual and the Commercial Scale Solar Hot Water Program Manual.
8. Connecticut Residential Solar Investment Program (CRSIP) under 2012 Connecticut General Statutes, Title 16, Chapter 283, Section 16-245ff read with 2014 Connecticut General Statutes, Title 16, Chapter 283, Section 16-245gg.
9. Michigan Energy Credits under the Clean, Renewable and Efficient Energy Act, 2008 (CREEA), Chapter 460, Section 27/(Section 460.1027) and 39(2)/(Section 460.1039); and Experimental Advanced Renewable Energy Program (EARP) under Section 21/(Section 460.1021) of the CREEA read with Rule C10.3 of the Rate Book for Electric Service adopted by Consumers Energy Company and approved by the Michigan Public Service Commission.
10. Delaware Solar Renewable Energy Credits under the Renewable Energy Portfolio Standards Act 2005 (RPS Act). Delaware Administrative Code, Title 26, Public Utilities, Rules and Procedures to Implement the Renewable Energy Portfolio Standard.
11. Made in Minnesota Solar Incentive Program (MSIP) administered pursuant to the criterion established under the Made in Minnesota Solar Energy Production Incentive law (Minnesota Statute § 216C.414, subd. 2 (2013)).
India alleges inconsistencies with Articles III:4 and XVI:1 of the
USTR invites written comments concerning the issues raised in this dispute. You should submit your comment electronically to
To submit comments via
The
Submit any comments containing business confidential information by fax to Sandy McKinzy at (202) 395-3640. A person requesting that information contained in a comment be treated as confidential business information must certify that s/he would not customarily release the information to the public. Any page containing business confidential information must be clearly marked “BUSINESS CONFIDENTIAL” on the top and bottom of that page. Filers of submissions containing business confidential information also must submit a public version of their comments electronically through
USTR may determine that information or advice contained in a comment, other than business confidential information, is confidential in accordance with section 135(g)(2) of the Trade Act of 1974 (19 U.S.C. 2155(g)(2)). If a submitter believes that information or advice is confidential, s/he must clearly designate the information or advice as confidential and mark it as “SUBMITTED IN CONFIDENCE” at the top and bottom of the cover page and each succeeding page, and provide a non-confidential summary of the information or advice.
Pursuant to section 127(e) of the Uruguay Round Agreements Act (19 U.S.C. 3537(e)), USTR will maintain a docket on this dispute settlement proceeding, docket number USTR-2016-0018, accessible to the public at
Federal Aviation Administration, DOT.
Notice of record of decision.
The Federal Aviation Administration (FAA) announces its decision to adopt the Department of the Navy's (DoN) Final Environmental Impact Statement (EIS) for Military Readiness Activities at Naval Weapons Systems Training Facility Boardman, Oregon, EIS No. 20150355. In accordance with Section 102 of the National Environmental Policy Act of 1969 (“NEPA”), the Council on Environmental Quality's (“CEQ”) regulations implementing NEPA (40 CFR parts 1500-1508), and other applicable authorities, including The Federal Aviation Administration (FAA) Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 8-2, and FAA Order JO 7400.2K, “Procedures for Handling Airspace Matters,” paragraph 32-2-3, the FAA has conducted an independent review and evaluation of the DoN's Final Environmental Impact Statement (EIS) for Military Readiness Activities at the at Naval Weapons Systems Training Facility (NWSTF) Boardman, Oregon, dated December 2015. As a cooperating agency with responsibility for approving special use airspace under 49 U.S.C. 40103(b)(3)(A), the FAA provided subject matter expertise and closely coordinated with the DoN during the environmental review process, including preparation of the Draft EIS and the Final EIS. Based on its independent review and evaluation, the FAA has determined the Final EIS, including its supporting documentation, as incorporated by reference, adequately assesses and discloses the environmental impacts of the for Military Readiness Activities at the at NWSTF Boardman, Oregon, and that adoption of the Final EIS by the FAA is authorized under 40 CFR 1506.3, Adoption. Accordingly, the FAA adopts the FEIS, and takes full responsibility for the scope and content that addresses the proposed changes to special use airspace for NWSTF Boardman.
Paula Miller, Airspace Policy and Regulations Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-7378.
In August 2012, in accordance with the National Environmental Policy Act and its implementing regulations, the DoN released a Draft EIS. The Draft EIS presented the potential environmental consequences of the DoN's proposal to achieve and maintain military readiness by analyzing the military training activities at NWSTF Boardman, Oregon. As a result of public, agency, and tribal comments during the 60-day public comment period on the Draft EIS, and the FAA aeronautical review process, the DoN, FAA, other federal and state agencies, and tribal governments have consulted to mitigate concerns while continuing to meet national defense training requirements. The DoN is the proponent for the NWSTF Boardman and is the lead agency for the preparation of the FEIS. The FAA is a cooperating agency responsible for approving special use airspace as defined in 40 CFR 1508.5.
As a result of the public comments received, the aeronautical studies, environmental analysis, the FAA is establishing the Boardman Low Military Operations Area (MOA) and amending the Boardman MOA. The Boardman MOA legal description has been modified from the description circularized to the public from July 18 through August 31, 2014. After the conclusion of the Aeronautical Study comment period, the FAA changed the coordinates of the airspace action to incorporate the proposed expansion that was circularized to the public consistent with the intent of the proposal stated in the circular and Aeronautical Study recommendation. The result is the change amends the existing Boardman MOA's description instead of creating a separate MOA for the expansion area. One coordinate in the Boardman Low MOA was changed to more accurately
The Adoption/ROD for the changes to the Boardman MOAs constitutes a final order of the FAA Administrator and is subject to exclusive judicial review under 49 U.S.C. 46110 by the U.S. Circuit Court of Appeals for the District of Columbia or the U.S. Circuit Court of Appeals for the circuit in which the person contesting the decision resides or has its principal place of business. Any party having substantial interest in this order may apply for review of the decision by filing a petition for review in the appropriate U.S. Court of Appeals no later than 60 days after the date of this notice in accordance with the provisions of 49 U.S.C. 46110. Any party seeking to stay implementation of the action as stated in the ROD must file an application with the FAA prior to seeking judicial relief as provided in Rule 18(a) of the Federal Rules of Appellate Procedure.
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of Correction.
This notice corrects information in the September 1, 2016, Notice of Funding Opportunity (NOFO) at 81 FR 60403 in reference to the amount of time by which a project must be authorized after applying for Accelerated Innovation Deployment (AID) Demonstration funding.
The FHWA will use an open, rolling solicitation. The project must be authorized within 12 months of applying for AID Demonstration funding. Completed applications will be evaluated and award determinations made on a rolling basis until the program ends or funding is no longer available. Applications must be submitted through
Only applicants who comply with all submission requirements described in this notice and submit applications through
For questions about the AID Demonstration program discussed herein, contact Mr. Thomas Harman, Director, Center for Accelerating Innovation, Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 366-6377. For legal questions, contact Ms. Seetha Srinivasan, Office of the Chief Counsel, Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 366-4099. Office hours are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays. A TDD is available for individuals who are deaf or hard of hearing at (202) 366-3993.
Additionally, the notice, answers to questions, requests for clarification, and information about Webinars for further guidance will be posted at:
An electronic copy of this document may be downloaded from the
The FHWA posted its NOFO on September 1, 2016, at 81 FR 60403. The NOFO is identified as document number 2016-21063 on the docket. Section D. Application and Submission Information and section E. Application Review Information, subsection I.1.i. of the NOFO incorrectly identified the amount of time by which a project must be authorized after applying for AID Demonstration funding as 6 months. The FHWA issues this correction to clarify that a project must be authorized within 12 months of applying for AID Demonstration funding.
Additional eligibility, application and submission information, as well as FHWA application review information, remains as published in the FHWA's NOFO dated September 1, 2016.
Section 52003 of Pub. L. 112-141; Section 6003 of Pub. L. 114-94; 23 U.S.C. 503.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions of four individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The exemptions enable these individuals who have had one or more seizures and are taking anti-seizure medication to continue to operate CMVs in interstate commerce.
The exemptions were effective on November 6, 2015. The exemptions will expire on November 6, 2017. Comments must be received on or before November 14, 2016.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2013-0107 using any of the following methods:
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Ms. Christine A. Hydock, Chief, Medical Programs Division, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for two years if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the two-year period.
The physical qualification standard for drivers regarding epilepsy found in 49 CFR 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person:
Has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria to assist Medical Examiners in determining whether drivers with certain medical conditions are qualified to operate a CMV in interstate commerce. [49 CFR part 391, APPENDIX A TO PART 391—MEDICAL ADVISORY CRITERIA, section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, and 5.]
The four individuals listed in this notice have requested renewal of their exemptions from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable two-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application. In accordance with 49 U.S.C. 31136(e) and 31315, each of the four applicants has satisfied the conditions for obtaining an exemption from the Epilepsy and Seizure Disorder requirements and were published in the
The four drivers in this notice remain in good standing with the Agency, have maintained their medical monitoring and have not exhibited any medical issues that would compromise their ability to safely operate a CMV during the previous two-year exemption period. FMCSA has concluded that renewing the exemptions for each of these applicants is likely to achieve a level of safety equal to that existing without the exemption. Therefore, FMCSA has decided to renew each exemption for a two-year period. In accordance with 49 U.S.C. 31136(e) and 31315, each driver has received a renewed exemption.
As of November 6, 2015, the following four drivers has satisfied the renewal conditions for obtaining an exemption from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), from driving CMVs in interstate commerce (78 FR 67449): Christopher Bird (OH); Edward Nissenbaum (PA); Stephen Stawinsky (PA); and George Webb (MA). The drivers were included in FMCSA-2013-0107. The exemptions were effective on November 6, 2015, and will expire on November 6, 2017.
The exemptions are extended subject to the following conditions: (1) Each driver must remain seizure-free and maintain a stable treatment during the two-year exemption period; (2) each driver must submit annual reports from their treating physicians attesting to the stability of treatment and that the driver has remained seizure-free; (3) each driver must undergo an annual medical examination by a certified Medical Examiner, as defined by 49 CFR 390.5; and (4) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy of his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the four exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the Epilepsy and Seizure Disorders requirement in 49 CFR 391.41 (b)(8). In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for two years unless revoked earlier by FMCSA.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for review and approval. The information collection request (ICR) titled, “Designation of Agents, Motor Carriers, Brokers and Freight Forwarders,” is used to provide registered motor carriers, property brokers, and freight forwarders a means of meeting process agent requirements.
We must receive your comments on or before November 14, 2016. OMB must receive your comments by this date in order to act quickly on the ICR.
All comments should reference Federal Docket Management System (FDMS) Docket Number FMCSA-2016-0160. Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/Federal Motor Carrier Safety Administration, and sent via electronic mail to
Ms. Tura Gatling, Office of Registration and Safety Information, Department of Transportation, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Telephone Number: (202) 385-2412; Email Address:
Registered motor carriers, brokers and freight forwarders must designate an agent on whom service of notices in proceedings before the Secretary may be made (49 U.S.C. 13303). Registered motor carriers must also designate an agent for every State in which they operate and traverse in the United States during such operations, agents on whom process issued by a court may be served in actions brought against the registered transportation entity (49 U.S.C. 13304, 49 CFR 366.4). Every broker shall make a designation for each State in which its offices are located or in which contracts are written (49 U.S.C. 13304, 49 CFR 366.4). Regulations governing the designation of process agents are found at 49 CFR part 366. This designation is filed with the FMCSA on Form BOC-3, “Designation of Agents for Service of Process.”
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions of four individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any
The exemptions were effective on September 16, 2016. The exemptions will expire on September 16, 2018. Comments must be received on or before November 14, 2016.
Ms. Christine A. Hydock, Chief, Medical Programs Division, 202-366-4001,
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2014-0213 using any of the following methods:
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Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for two years if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the two-year period.
The physical qualification standard for drivers regarding epilepsy found in 49 CFR 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person:
Has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria to assist Medical Examiners in determining whether drivers with certain medical conditions are qualified to operate a CMV in interstate commerce. [49 CFR part 391, APPENDIX A TO PART 391—MEDICAL ADVISORY CRITERIA, section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, and 5.]
The four individuals listed in this notice have requested renewal of their exemptions from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable two-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application. In accordance with 49 U.S.C. 31136(e) and 31315, each of the four applicants has satisfied the conditions for obtaining an exemption from the Epilepsy and Seizure Disorder requirements and were published in the
The four drivers in this notice remain in good standing with the Agency, have maintained their medical monitoring and have not exhibited any medical issues that would compromise their ability to safely operate a CMV during the previous two-year exemption period. FMCSA has concluded that renewing the exemptions for each of these applicants is likely to achieve a level of safety equal to that existing without the exemption. Therefore, FMCSA has decided to renew each exemption for a two-year period. In accordance with 49 U.S.C. 31136(e) and 31315, each driver has received a renewed exemption.
As of September 16, 2016, the following four individuals have satisfied the renewal conditions for obtaining an exemption from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), from driving CMVs in interstate commerce (80 FR 16495): Lee Anderson (MA); Gary Combs (KY); Roland Mezger (PA); and Robert Thomas Jr. (NC).
These drivers were included in FMCSA-2014-0213. The exemptions were effective on September 16, 2016, and will expire on September 16, 2018.
The exemptions are extended subject to the following conditions: (1) Each driver must remain seizure-free and maintain a stable treatment during the two-year exemption period; (2) each driver must submit annual reports from their treating physicians attesting to the stability of treatment and that the driver
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the four exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the Epilepsy and Seizure Disorders requirement in 49 CFR391.41(b)(8). In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for two years unless revoked earlier by FMCSA.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice; request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for approval and invites public comment. FMCSA requests approval to renew the ICR titled “
We must receive your comments on or before December 13, 2016.
You may submit comments identified by Federal Docket Management System Number FMCSA-2016-0334 by any of the following methods:
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Mr. Thomas Yager, Chief, Driver and Carrier Operations Division, Department of Transportation, Federal Motor Carrier Safety Administration, West Building 6th Floor, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: 202-366-4325; email
(4) ways that the burden could be minimized without reducing the quality of the collected information. The Agency will summarize or include your comments in the request for OMB's clearance of this information collection.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Announcement of advisory committee public meetings.
FMCSA announces a joint meeting of its Motor Carrier Safety Advisory Committee (MCSAC) and Medical Review Board (MRB) on Monday, October 24, 2016. Together, the MCSAC and MRB will receive an update on the Driver Health and Wellness Initiative, a non-regulatory public-private partnership of stakeholders to improve drivers' health, and a preview of its Web page. The MRB will report on its revised recommendations on obstructive sleep apnea (OSA) based on its evaluation of the comments from the joint Advance Notice of Proposed Rulemaking (ANPRM) that the Agency issued with the Federal Railroad Administration. Additionally, the MCSAC will discuss how the implementation of these recommendations may impact current and future populations of drivers. On October 25, the MCSAC will meet separately to complete its review of the Agency's regulatory guidance and the MRB will meet to discuss how to incorporate recently issued warnings from the Food and Drug Administration (FDA) on narcotics and benzodiazepines. The meetings are open to the public for their entirety.
The joint meeting will be held on Monday, October 24, 2016, from 9:15 a.m. to 5 p.m., Eastern Time (E.T.). On Tuesday, October 25, the MCSAC and MRB will meet separately. Copies of all task statements and an agenda for the entire meeting will be made available in advance of the meeting at
The meetings will take place at the National Association of Homebuilders (NAHB), 1201 Fifteenth Street NW., Washington, DC 20005.
Ms. Shannon L. Watson, Senior Policy Advisor, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 366-5221,
Section 4144 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU, Pub. L. 109-59, 119 Stat. 1144, August 10, 2005) required the Secretary of Transportation to establish the MCSAC. The Moving Ahead for Progress in the 21st Century Act (MAP-21, Pub. L. 112-141) reauthorized the MCSAC through September 30, 2013, at which time its statutory authority expired, necessitating the establishment of MCSAC as a discretionary committee under FACA. Secretary Foxx established that effective September 30, 2013, through September 30, 2015. MCSAC provides advice and recommendations to the FMCSA Administrator on motor carrier safety programs and regulations, and operates in accordance with the Federal Advisory Committee Act (FACA, 5 U.S.C. App 2).
The MCSAC began considering Task 16-1, Review of Regulatory Guidance, at its June 2016 meeting to provide recommendations to the Agency concerning implementation of section 5203 of the FAST Act to: (1) Prioritize regulatory guidance that should be incorporated into the safety regulations to promote clear, consistent, and enforceable rules; (2) identify regulatory guidance that appears to be inconsistent with the intent of the safety regulations or makes enforcement of key safety requirements difficult; and (3) identify guidance that should remain in place.
Additionally, the MCSAC and MRB began considering Joint Task 15-3, on Driver Health and Wellness, at its joint meeting in September 2015. The task is to provide recommendations to the Agency on the structure, content, and methods for determining the effectiveness of a public-private partnership to promote commercial motor vehicle (CMV) driver wellness. To reach that goal, the MCSAC and MRB chairmen appointed a joint subcommittee that included members of both advisory committees and stakeholders.
Section 4116 of SAFETEA-LU requires the Secretary of Transportation, with the advice of the MRB and the chief medical examiner, to establish, review, and revise “medical standards for operators of commercial motor vehicles that will ensure that the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely.” The MRB operates in accordance with FACA under the terms of its charter, filed November 25, 2013.
At its meeting in August 2016, the MRB began consideration of Task 16-1, which is to provide recommendations to the Agency on the disposition of comments from medical professionals and associations to the Agency's and the Federal Railroad Administration's (FRA) Advance Notice of Proposed Rulemaking (ANPRM) on safety-sensitive rail and commercial motor vehicle (CMV) drivers with moderate to severe Obstructive Sleep Apnea (OSA).
Oral comments from the public will be heard throughout the meeting, at the discretion of the MCSAC and MRB chairmen. Members of the public may submit written comments on the topics to be considered during the meeting by Wednesday, October 19, to Federal Docket Management System (FDMC) Docket Number FMCSA-2008-0362 for the MRB and FMCSA-2006-26367 for the MCSAC using any of the following methods:
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Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions of five individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The exemptions enable these individuals who have had one or more seizures and are taking anti-seizure medication to continue to operate CMVs in interstate commerce.
The exemptions were effective on May 19, 2016. The exemptions will expire on May 19, 2018. Comments must be received on or before November 14, 2016.
Ms. Christine A. Hydock, Chief, Medical Programs Division, 202-366-4001,
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2013-0443 using any of the following methods:
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Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for two years if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the two-year period.
The physical qualification standard for drivers regarding epilepsy found in 49 CFR 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person:
Has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria to assist Medical Examiners in determining whether drivers with certain medical conditions are qualified to operate a CMV in interstate commerce. [49 CFR part 391, APPENDIX A TO PART 391—
The five individuals listed in this notice have requested renewal of their exemptions from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable two-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application. In accordance with 49 U.S.C. 31136(e) and 31315, each of the five applicants has satisfied the conditions for obtaining an exemption from the Epilepsy and Seizure Disorder requirements and were published in the
The five drivers in this notice remain in good standing with the Agency, have maintained their medical monitoring and have not exhibited any medical issues that would compromise their ability to safely operate a CMV during the previous two-year exemption period. FMCSA has concluded that renewing the exemptions for each of these applicants is likely to achieve a level of safety equal to that existing without the exemption. Therefore, FMCSA has decided to renew each exemption for a two-year period. In accordance with 49 U.S.C. 31136(e) and 31315, each driver has received a renewed exemption.
As of May 19, 2016, the following five individuals have satisfied the renewal conditions for obtaining an exemption from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), from driving CMVs in interstate commerce (79 FR 74170):
These drivers were included in FMCSA-2013-0443. The exemptions were effective on May 19, 2016, and will expire on May 19, 2018.
The exemptions are extended subject to the following conditions: (1) Each driver must remain seizure-free and maintain a stable treatment during the two-year exemption period; (2) each driver must submit annual reports from their treating physicians attesting to the stability of treatment and that the driver has remained seizure-free; (3) each driver must undergo an annual medical examination by a certified Medical Examiner, as defined by 49 CFR 390.5; and (4) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy of his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the 5 exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the Epilepsy and Seizure Disorders requirement in 49 CFR 391.41 (b)(8). In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for two years unless revoked earlier by FMCSA.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions of two individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The exemptions enable these individuals who have had one or more seizures and are taking anti-seizure medication to continue to operate CMVs in interstate commerce.
The renewed exemptions were effective on the dates stated in the discussions below and will expire on the dates stated in the discussions below. Comments must be received on or before November 14, 2016.
Ms. Christine A. Hydock, Chief, Medical Programs Division, 202-366-4001,
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2013-0442; FMCSA-2013-0445 using any of the following methods:
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Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for two years if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the two-year period.
The physical qualification standard for drivers regarding epilepsy found in 49 CFR 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person:
Has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria to assist Medical Examiners in determining whether drivers with certain medical conditions are qualified to operate a CMV in interstate commerce. [49 CFR part 391, APPENDIX A TO PART 391—MEDICAL ADVISORY CRITERIA, section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, and 5.]
The two individuals listed in this notice have requested renewal of their exemptions from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable two-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application. In accordance with 49 U.S.C. 31136(e) and 31315, each of the two applicants has satisfied the conditions for obtaining an exemption from the Epilepsy and Seizure Disorder requirements and were published in the
The two drivers in this notice remain in good standing with the Agency, have maintained their medical monitoring and have not exhibited any medical issues that would compromise their ability to safely operate a CMV during the previous two-year exemption period. FMCSA has concluded that renewing the exemptions for each of these applicants is likely to achieve a level of safety equal to that existing without the exemption. Therefore, FMCSA has decided to renew each exemption for a two-year period. In accordance with 49 U.S.C. 31136(e) and 31315, each driver has received a renewed exemption.
As of July 8, 2016, Michael Duprey (CT) has satisfied the renewal conditions for obtaining an exemption from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), from driving CMVs in interstate commerce (79 FR 73690). This driver was included in FMCSA-2013-0442. The exemption was effective on July 8, 2016, and will expire on July 8, 2018.
As of July 14, 2016, Ronald Blout (GA) has satisfied the renewal conditions for obtaining an exemption from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), from driving CMVs in interstate commerce (79 FR 73693). This driver was included in FMCSA-2013-0445. The exemption was effective on July 14, 2016, and will expire on July 14, 2018.
The exemptions are extended subject to the following conditions: (1) Each driver must remain seizure-free and maintain a stable treatment during the two-year exemption period; (2) each driver must submit annual reports from their treating physicians attesting to the stability of treatment and that the driver has remained seizure-free; (3) each driver must undergo an annual medical examination by a certified Medical Examiner, as defined by 49 CFR 390.5; and (4) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy of his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the two exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the Epilepsy and Seizure Disorders requirement in 49 CFR 391.41(b)(8). In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for two years unless revoked earlier by FMCSA.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 125 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
Each group of renewed exemptions are effective from the dates stated in the discussions below. Comments must be received on or before November 14, 2016.
You may submit comments bearing the Federal Docket Management System (FDMS) numbers: [Docket No. FMCSA-2000-7006; FMCSA-2000-7165; FMCSA-2000-8398; FMCSA-2001-11426; FMCSA-2002-11714; FMCSA-2002-12294; FMCSA-2004-17195; FMCSA-2004-17984; FMCSA-2004-18885; FMCSA-2005-21711; FMCSA-2006-23773; FMCSA-2006-24783; FMCSA-2007-0071; FMCSA-2007-27897; FMCSA-2008-0106; FMCSA-2008-0174; FMCSA-2008-0231; FMCSA-2008-0266; FMCSA-2009-0303; FMCSA-2010-0082; FMCSA-2010-0114; FMCSA-2010-0161; FMCSA-2010-0187; FMCSA-2010-0385; FMCSA-2011-0366; FMCSA-2011-0379; FMCSA-2011-0380; FMCSA-2012-0040; FMCSA-2012-0160; FMCSA-2012-0161; FMCSA-2012-0214; FMCSA-2012-0215; FMCSA-2012-0216; FMCSA-2013-0167; FMCSA-2013-0169; FMCSA-2013-0170; FMCSA-2013-0174; FMCSA-2014-0003; FMCSA-2014-0004; FMCSA-2014-0005; FMCSA-2014-0006; FMCSA-2014-0007; FMCSA-2014-0010; FMCSA-2014-0011; FMCSA-2014-0296], using any of the following methods:
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Christine A. Hydock, Chief, Medical Programs Division, Medical Programs Division, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 125 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 125 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. Each individual is identified according to the renewal date.
The exemptions are extended subject to the following conditions: (1) That each individual has a physical examination every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provides a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retains a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. The following group(s) of drivers will receive renewed exemptions effective in the month of October and are discussed below.
As of October 6, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 58 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (65 FR 20245; 65 FR 57230; 67 FR 15662; 67 FR 37907; 67 FR 46016; 67 FR 57266; 67 FR 57627; 69 FR 17263; 69 FR 26206; 69 FR 26921; 69 FR 31447; 69 FR 51346; 69 FR 52741; 70 FR 48797; 70 FR 61493; 71 FR 19602; 71 FR 26602; 71 FR 27033; 71 FR 27034; 71 FR 32183; 71 FR 41310; 71 FR 6826; 71 FR 50970; 71 FR 53489; 72 FR 39879; 72 FR 52419; 73 FR 6242; 73 FR 6244; 73 FR 16950; 73 FR 16952; 73 FR 27018; 73 FR 35194; 73 FR 35200; 73 FR 36955; 73 FR 38498; 73 FR 48270; 73 FR 48273; 73 FR 48275; 73 FR 51336; 73 FR 75807; 74 FR 41971; 74 FR 60022; 75 FR 4623; 75 FR 22179; 75 FR 25918; 75 FR 27622; 75 FR 34209; 75 FR 34211; 75 FR 36778; 75 FR 36779; 75 FR 39725; 75 FR 44050; 75 FR 44051; 75 FR 47886; 75 FR 47888; 75 FR 52062; 75 FR 61833; 75 FR 77942; 76 FR 5425; 76 FR 54530; 77 FR 5874; 77 FR 15184; 77 FR 17109; 77 FR 17117; 77 FR 23797; 77 FR 23799; 77 FR 26816; 77 FR 27845; 77 FR 27850; 77 FR 33558; 77 FR 36338; 77 FR 38381; 77 FR 38384; 77 FR 40945; 70 FR 40946; 77 FR 41879; 77 FR 46153; 77 FR 46793; 77 FR 51846; 77 FR 52388; 77 FR 52389; 77 FR 52391; 77 FR 56262; 77 FR 59245; 78 FR 64271; 78 FR 64274; 78 FR 67454; 78 FR 77778; 78 FR 78477; 79 FR 4803; 79 FR 1908; 79 FR 2748; 79 FR 14333; 79 FR 14571; 79 FR 18392; 79 FR 23797; 79 FR 27365; 79 FR 27681; 79 FR 28588; 79 FR 29498; 79 FR 35212; 79 FR 35218; 79 FR 35220; 79 FR 37842; 79 FR 38649; 79 FR 38659; 79 FR 38661; 79 FR 40945; 79 FR 40945; 79 FR 41735; 79 FR 41740; 79 FR 45868; 79 FR 46153; 79 FR 46300; 79 FR 47175; 79 FR 51642; 79 FR 51643; 79 FR 52388; 79 FR 53514; 79 FR 64001):
The drivers were included in one of the following dockets: Docket Nos. FMCSA-2000-7006; FMCSA-2002-11714; FMCSA-2002-12294; FMCSA-2004-17195; FMCSA-2005-21711; FMCSA-2006-23773; FMCSA-2006-24783; FMCSA-2007-0071; FMCSA-2007-27897; FMCSA-2008-0106; FMCSA-2008-0174; FMCSA-2009-0303; FMCSA-2010-0082; FMCSA-2010-0114; FMCSA-2010-0161; FMCSA-2010-0385; FMCSA-2011-0366; FMCSA-2011-0379; FMCSA-2011-0380; FMCSA-2012-0040; FMCSA-2012-0160; FMCSA-2012-0161; FMCSA-2012-0214; FMCSA-2013-0167; FMCSA-2013-0169; FMCSA-2013-0170; FMCSA-2013-0174; FMCSA-2014-0003; FMCSA-2014-0004; FMCSA-2014-0005; FMCSA-2014-0006; FMCSA-2014-0007; FMCSA-2014-0010. Their exemptions are effective as of October 6, 2016 and will expire on October 6, 2018.
As of October 15, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 17 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (67 FR 10471; 67 FR 19798; 69 FR 33997; 69 FR 51346; 69 FR 61292; 71 FR 50970; 71 FR 55820; 73 FR 38497; 73 FR 46973; 73 FR 48270; 73 FR 48271; 73 FR 54888; 73 FR 65009; 75 FR 39725; 75 FR 44050; 75 FR 47883; 75 FR 50799; 75 FR 52063; 75 FR 57105; 75 FR 61833; 75 FR 63257; 77 FR 38381; 77 FR 48590; 77 FR 51846; 77 FR 52388; 77 FR 60010):
The drivers were included in one of the following dockets: Docket No. FMCSA-2001-11426; FMCSA-2004-17984; FMCSA-2008-0174; FMCSA-2008-0321; FMCSA-2010-0161; FMCSA-2010-0187; FMCSA-2012-0160. Their exemptions are effective as of October 15, 2016 and will expire on October 15, 2018.
As of October 21, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 7 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (79 FR 56099; 79 FR 70928):
The drivers were included on the following docket: Docket No. FMCSA-2014-0011. Their exemptions are effective as of October 21, 2016 and will expire on October 21, 2018.
As of October 22, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 8 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (73 FR 35194; 73 FR 51689; 73 FR 63047; 75 FR 39725; 75 FR 47883; 75 FR 61883; 75 FR 63257; 75 FR 64396; 77 FR 64582; 79 FR 56104):
The drivers were included on the following docket: Docket No. FMCSA-2008-0106; FMCSA-2008-0266; FMCSA-2010-0161; FMCSA-2010-0187. Their exemptions are effective as of October 22, 2016 and will expire on October 22, 2018.
As of October 23, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 7 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (77 FR 52381; 77 FR 64841; 79 FR 56097):
The drivers were included on the following docket: Docket No. FMCSA-2012-0215. Their exemptions are effective as of October 23, 2016 and will expire on October 23, 2018.
As of October 27, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 10 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (65 FR 33406; 65 FR 57234; 65 FR 78256; 66 FR 16311; 67 FR 57266; 69 FR 52741; 69 FR 53493; 69 FR 62742; 71 FR 53489; 71 FR 62148; 73 FR 61925; 75 FR 59327; 77 FR 64583; 79 FR 56117):
The drivers were included on the following docket: Docket No. FMCSA-2000-7165; FMCSA-2000-8398; FMCSA-2004-18885. Their exemptions are effective as of October 27, 2016 and will expire on October 27, 2018.
As of October 31, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 18 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (77 FR 56261; 77 FR 65933; 79 FR 58856; 79 FR 59348; 79 FR 72754):
The drivers were included on the following docket: Docket No. FMCSA-2012-0216; FMCSA-2014-0296. Their exemptions are effective as of October 31, 2016 and will expire on October 31, 2018.
Each of the 125 applicants listed in the groups above has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the requirement specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption requirements.
These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by November 14, 2016.
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 125 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was made on the merits of each case and made only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period. FMCSA may issue a final rule at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions of two individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The exemptions enable these individuals who have had one or more seizures and are taking anti-seizure medication to continue to operate CMVs in interstate commerce.
Each renewed exemption was effective on the dates stated in the discussions below and will expire on the dates stated in the discussions below. Comments must be received on or before November 14, 2016.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2012-0094; FMCSA-2013-0109 using any of the following methods:
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Ms. Christine A. Hydock, Chief, Medical Programs Division, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for two years if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the two-year period.
The physical qualification standard for drivers regarding epilepsy found in 49 CFR 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person:
Has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria to assist Medical Examiners in determining whether drivers with certain medical conditions are qualified to operate a CMV in interstate commerce. [49 CFR part 391, APPENDIX A TO PART 391—MEDICAL ADVISORY CRITERIA, section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, and 5.]
The two individuals listed in this notice have requested renewal of their exemptions from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable two-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application. In accordance with 49 U.S.C. 31136(e) and 31315, each of the two applicants has satisfied the conditions for obtaining an exemption from the Epilepsy and Seizure Disorder requirements and were published in the
The two drivers in this notice remain in good standing with the Agency, have maintained their medical monitoring and have not exhibited any medical issues that would compromise their ability to safely operate a CMV during the previous two-year exemption period. FMCSA has concluded that renewing the exemptions for each of these applicants is likely to achieve a level of safety equal to that existing without the exemption. Therefore, FMCSA has decided to renew each exemption for a two-year period. In accordance with 49 U.S.C. 31136(e) and 31315, each driver has received a renewed exemption.
As of February 10, 2016, Victor Martinez (ID) has satisfied the renewal conditions for obtaining an exemption from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), from driving CMVs in interstate commerce (79 FR 70917). This driver was included in FMCSA-2012-0094. The exemption was effective on February 10, 2016, and will expire on February 10, 2018.
As of February 14, 2016, John Johnson (WI) has satisfied the renewal conditions for obtaining an exemption from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), from driving CMVs in interstate commerce (79 FR 23054). This driver was included in FMCSA-2013-0109. The exemption was effective on February 14, 2016, and will expire on February 14, 2018.
The exemptions are extended subject to the following conditions: (1) Each driver must remain seizure-free and maintain a stable treatment during the two-year exemption period; (2) each driver must submit annual reports from their treating physicians attesting to the stability of treatment and that the driver has remained seizure-free; (3) each driver must undergo an annual medical examination by a certified Medical Examiner, as defined by 49 CFR 390.5; and (4) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy of his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the two exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the Epilepsy and Seizure Disorders requirement in 49 CFR 391.41 (b)(8). In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for two years unless revoked earlier by FMCSA.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for review and approval. The information collection request (ICR) titled, “Unified Registration System” (78 FR 52608 dated August 23, 2013) required those entities that are subject to the FMCSA's licensing, registration and certification regulations to use a new application Form MCSA-1 titled, “FMCSA Registration/Update(s).”
Please send your comments on or before November 14, 2016. OMB must receive your comments by this date in order to act quickly on the ICR.
All comments should reference Federal Docket Management System (FDMS) Docket Number FMCSA-2016-0161. Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/Federal Motor Carrier Safety Administration, and sent via electronic mail to
Mr. Jeffrey Secrist, Office of Registration and Safety Information, Department of Transportation, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Telephone Number: (202) 385-2367; Email Address:
Estimated Number of Respondents: 78,400 respondents for initial registration filings; 507,500 respondents for completing the biennial update; 13,000 respondents for filing name/address change requests; 1,100 respondents for transfer of operating authority registration notifications; and 2,030 respondents for reinstatements of operating authority registration.
Estimated Time per Response: 1.34 hours for initial registration filings; and 10 minutes each for the biennial update, name/address change request, notification of transfer of operating authority registration, and reinstatement of revoked or inactive registration.
Expiration Date: November 30, 2016
Frequency of Response: This information collection covers the initial application to register with FMCSA as a motor carrier, freight forwarder, broker, intermodal equipment provider, and cargo tank facility; as well as subsequent applications to complete a biennial update or any other update of the information recorded on the registration system, submit a name/address change request, seek a reinstatement of revoked or inactive registration, and notify the Agency of a transfer of operating authority registration.
Estimated Total Annual Burden: 105,000 burden hours for the initial applications of registration; 84,600 burden hours for completing biennial updates; 2,200 burden hours for filing name/address change requests; 180 burden hours for operating authority registration transfer notifications; and 340 burden hours for reinstatements of revoked or inactive registration; for a total estimated annual burden of 192,320 hours.
This information collection supports the DOT Strategic Goal of Safety. It will streamline the existing registration process and ensure that FMCSA can more efficiently track motor carriers, freight forwarders, brokers, and other entities regulated by the Agency.
The information on the on-line Form MCSA-1 will be used by FMCSA to identify its regulated entities, to help prioritize the Agency's activities, to aid in assessing the safety outcomes of those activities and for statistical purposes. The FMCSA will collect the information electronically through on-line forms. The information is currently being collected through a series of forms, which may be filed on-line or on paper. Every interstate motor carrier operating commercial motor vehicles is required to register with FMCSA to obtain a USDOT Number. Most for-hire carriers are also required to file a separate application for operating authority under 49 U.S.C. 13901. Mexico- and Non-North America-domiciled motor carriers file a separate registration form. The information collection will replace these three collections and create a single on-line form. This rule will streamline the collection and eliminate the need for motor carriers to file the same information on multiple forms.
On June 10, 2016, FMCSA published a notice in the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemption; request for comments.
FMCSA announces receipt of applications from 11 individuals for an exemption from the prohibition in the Federal Motor Carrier Safety Regulations (FMCSRs) against persons with a clinical diagnosis of epilepsy or any other condition that is likely to cause a loss of consciousness or any loss of ability to control a commercial motor vehicle (CMV) to drive in interstate commerce. If granted, the exemptions would enable these individuals who have had one or more seizures and are taking anti-seizure medication to operate CMVs in interstate commerce.
Comments must be received on or before November 14, 2016.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2016-0007 using any of the following methods:
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Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the FMCSRs for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the two-year period.
The 11 individuals listed in this notice have requested an exemption from the epilepsy prohibition in 49 CFR 391.41(b)(8). Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
The physical qualification standard for drivers regarding epilepsy found in 49 CFR 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person:
Has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria
The advisory criteria state the following:
If an individual has had a sudden episode of a non-epileptic seizure or loss of consciousness of unknown cause that did not require anti-seizure medication, the decision whether that person's condition is likely to cause the loss of consciousness or loss of ability to control a CMV should be made on an individual basis by the Medical Examiner in consultation with the treating physician. Prior to considering certification, it is suggested there be a six-month waiting period from the time of the episode. Following the waiting period, it is suggested that the individual undergo a complete neurological examination. If the results of the examination are negative and anti-seizure medication is not required, the driver may be qualified.
In those individual cases where a driver had a seizure or an episode of loss of consciousness that resulted from a known medical condition (
Drivers who have a history of epilepsy/seizures, off anti-seizure medication and seizure-free for 10 years, may be qualified to operate a CMV in interstate commerce. Interstate drivers who have had a single unprovoked seizure may be qualified to drive a CMV in interstate commerce if seizure-free and off anti-seizure medication for five years or more.
As a result of Medical Examiners misinterpreting advisory criteria as regulation, numerous drivers have been prohibited from operating a CMV in interstate commerce based on the fact that they have had one or more seizures and are taking anti-seizure medication, rather than an individual analysis of their circumstances by a qualified Medical Examiner based on the physical qualification standards and medical best practices.
On January 15, 2013, in a Notice of Final Disposition entitled, “Qualification of Drivers; Exemption Applications; Epilepsy and Seizure Disorders,” (78 FR 3069), FMCSA announced its decision to grant requests from 22 individuals for exemptions from the regulatory requirement that interstate CMV drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” Since the January 15, 2013 notice, the Agency has published additional notices granting requests from individuals for exemptions from the regulatory requirement regarding epilepsy found in 49 CFR 391.41(b)(8).
To be considered for an exemption from the epilepsy prohibition in 49 CFR 391.41(b)(8), applicants must meet the criteria in the 2007 recommendations of the Agency's Medical Expert Panel (MEP) (78 FR 3069).
Mr. Beamon is a 56 year-old class A CDL holder in New York. He has a history of a seizure in 2007. He takes anti-seizure medication with the dosage and frequency remaining the same since 2011. His physician states that he is supportive of Mr. Beamon receiving an exemption.
Mr. Fender is a 63 year-old class A CDL holder in Colorado. He has a history of a seizure disorder and his last seizure was in 1996. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. His physician states that he is supportive of Mr. Fender receiving an exemption.
Mr. Grant is a 54 year-old driver in South Carolina. He has a history of a seizure disorder and his last seizure was in 1995. He takes anti-seizure medication with the dosage and frequency remaining the same since 2013. His physician states that he is supportive of Mr. Grant receiving an exemption.
Mr. Hines is a 46 year-old class B CDL holder in Ohio. He has a history of a brain tumor removal and a single seizure in 2002. He takes anti-seizure medication with the dosage and frequency remaining the same since 2006. His physician states that he is supportive of Mr. Hines receiving an exemption.
Mr. Kangas is a 44 year-old class A CDL holder in Michigan. He has a history of epilepsy and his last seizure was in 2001. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. His physician states that he is supportive of Mr. Kangas receiving an exemption.
Mr. Knott is a 24 year-old driver in Maryland. He has a history of juvenile epilepsy and his last seizure was in 2008. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. His physician states that he is supportive of Mr. Knott receiving an exemption.
Mr. Mahin is a 56 year-old driver in Kansas. He has a history of juvenile epilepsy and his last seizure was in 1977. He has not taken anti-seizure medication since 1982. His physician states that he is supportive of Mr. Mahin receiving an exemption.
Mr. Page is a 55 year-old driver in Maryland. He has a history of a seizure disorder and his last seizure was in 2004. He takes anti-seizure medication with the dosage and frequency remaining the same since 2013. His physician states that he is supportive of Mr. Page receiving an exemption.
Mr. Palubicki is a 30 year-old driver in Minnesota. He has a history of epilepsy and his last seizure was in September 2008. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. His physician states that he is supportive of Mr. Palubicki receiving an exemption.
Mr. Pierstorff is a 48 year-old class A CDL holder in Wisconsin. He has a history of epilepsy and his last seizure was in 1982. He takes anti-seizure medication with the dosage and frequency remaining the same since 2013. His physician states that he is supportive of Mr. Pierstorff receiving an exemption.
Mr. Powderly is a 33 year-old driver in California. He has a history of a seizure disorder and his last seizure was in 2002. He takes anti-seizure medication with the dosage and frequency remaining the same since that time. His physician states that he is supportive of Mr. Powderly receiving an exemption.
In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the dates section of the notice.
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and materials received during the comment period. FMCSA may issue a final determination any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions of 11 individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The exemptions enable these individuals who have had one or more seizures and are taking anti-seizure medication to continue to operate CMVs in interstate commerce.
Each group of renewed exemptions were effective on the dates stated in the discussions below and will expire on the dates stated in the discussions below. Comments must be received on or before November 14, 2016.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket No. FMCSA-2011-0389; FMCSA-2012-0294; FMCSA-2013-0109; FMCSA-2013-0442 using any of the following methods:
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Ms. Christine A. Hydock, Chief, Medical Programs Division, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for two years if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the two-year period.
The physical qualification standard for drivers regarding epilepsy found in 49 CFR 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person:
Has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria to assist Medical Examiners in determining whether drivers with certain medical conditions are qualified to operate a CMV in interstate commerce. [49 CFR part 391, APPENDIX A TO PART 391—MEDICAL ADVISORY CRITERIA, section H. Epilepsy: § 391.41(b)(8), paragraphs 3, 4, and 5.]
The 11 individuals listed in this notice have requested renewal of their exemptions from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable two-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application. In accordance with 49 U.S.C. 31136(e)
The 11 drivers in this notice remain in good standing with the Agency, have maintained their medical monitoring and have not exhibited any medical issues that would compromise their ability to safely operate a CMV during the previous two-year exemption period. FMCSA has concluded that renewing the exemptions for each of these applicants is likely to achieve a level of safety equal to that existing without the exemption. Therefore, FMCSA has decided to renew each exemption for a two-year period. In accordance with 49 U.S.C. 31136(e) and 31315, each driver has received a renewed exemption.
As of April 8, 2016, the following four individuals have satisfied the renewal conditions for obtaining an exemption from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), from driving CMVs in interstate commerce (79 FR 70917; 79 FR 23054): Jeffrey Ballweg (WI); Michael Ranalli (PA); Lonnie Reicker (IL); and Jay Whitehead (NY). These drivers were included in FMCSA-2011-0389; and FMCSA-2012-0294; FMCSA-2013-0109. The exemptions were effective on April 8, 2016, and will expire on April 8, 2018.
As of April 23, 2016, the following seven individuals have satisfied the renewal conditions for obtaining an exemption from the Epilepsy and Seizure Disorders prohibition in 49 CFR 391.41(b)(8), from driving CMVs in interstate commerce (79 FR 73690):
These drivers were included in FMCSA-2013-0442. The exemptions were effective on April 23, 2016, and will expire on April 23, 2018.
The exemptions are extended subject to the following conditions: (1) Each driver must remain seizure-free and maintain a stable treatment during the two-year exemption period; (2) each driver must submit annual reports from their treating physicians attesting to the stability of treatment and that the driver has remained seizure-free; (3) each driver must undergo an annual medical examination by a certified Medical Examiner, as defined by 49 CFR 390.5; and (4) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy of his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based upon its evaluation of the 11 exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the Epilepsy and Seizure Disorders requirement in 49 CFR 391.41 (b)(8). In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for two years unless revoked earlier by FMCSA.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
This document announces receipt by the National Highway Traffic Safety Administration (NHTSA) of a petition for a decision that model year (MY) 2008 Chevrolet Silverado trucks that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS), are eligible for importation into the United States because they are substantially similar to vehicles that were originally manufactured for sale in the United States and that were certified by their manufacturer as complying with the safety standards (the U.S.-certified version of the 2008 Chevrolet Silverado truck) and they are capable of being readily altered to conform to the standards.
The closing date for comments on the petition is November 14, 2016.
Comments should refer to the docket and notice numbers above and be submitted by any of the following methods:
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George Stevens, Office of Vehicle Safety Compliance, NHTSA (202-366-5308).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable FMVSS shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States, certified under 49 U.S.C. 30115, and of the same model year as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable FMVSS.
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR part 592. As specified in 49 CFR 593.7, NHTSA publishes notice in the
Wallace Environmental Testing Laboratories (WETL), Inc. of Houston, Texas (Registered Importer R-90-005) has petitioned NHTSA to decide whether nonconforming 2008 Chevrolet Silverado trucks are eligible for importation into the United States. The vehicles which WETL believes are substantially similar are MY 2008 Chevrolet Silverado trucks sold in the United States and certified by their manufacturer as conforming to all applicable FMVSS.
The petitioner claims that it compared non-U.S. certified MY 2008 Chevrolet Silverado trucks to their U.S.-certified counterparts, and found the vehicles to be substantially similar with respect to compliance with most FMVSS.
WETL submitted information with its petition intended to demonstrate that non-U.S. certified MY 2008 Chevrolet Silverado trucks, as originally manufactured, conform with many applicable FMVSS in the same manner as their U.S.-certified counterparts, or are capable of being readily altered to conform to those standards. Specifically, the petitioner claims that the non U.S.-certified MY 2008 Chevrolet Silverado trucks, as originally manufactured, conform to: Standard Nos. 102
The petitioner also contends that the subject non-U.S certified vehicles are capable of being readily altered to meet the following standards, in the manner indicated:
Standard No. 101
Standard No. 110
The petitioner additionally states that a vehicle identification plate must be affixed to the vehicle near the left windshield pillar to meet the requirements of 49 CFR part 565.
All comments received before the close of business on the closing date indicated above will be considered, and will be available for examination in the docket at the above addresses both before and after that date. To the extent possible, comments filed after the closing date will also be considered. Notice of final action on the petition will be published in the
49 U.S.C. 30141(a)(1)(A), (a)(1)(B), and (b)(1); 49 CFR 593.7; delegation of authority at 49 CFR 1.95 and 501.8.
Office of the Secretary, Department of Transportation.
No FEAR Act Notice.
This Notice implements Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act of 2002). It is the annual obligation for Federal agencies to notify all employees, former employees, and applicants for Federal employment of the rights and protections available to them under the Federal Anti-discrimination and Whistleblower Protection Laws.
Yvette Rivera, Associate Director of Equal Employment Opportunity Programs Division (S-32), Departmental Office of Civil Rights, Office of the
You may retrieve this document online through the Federal Document Management System at
On May 15, 2002, Congress enacted the “Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,” now recognized as the No FEAR Act (Pub. L. 107-174). One purpose of the Act is to “require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws.” (Pub. L. 107-174, Summary). In support of this purpose, Congress found that “agencies cannot be run effectively if those agencies practice or tolerate discrimination” (Pub. L. 107-174, Title I, General Provisions, section 101(1)). The Act also requires the United States Department of Transportation (USDOT) to provide this Notice to all USDOT employees, former USDOT employees, and applicants for USDOT employment. This Notice informs such individuals of the rights and protections available under Federal antidiscrimination and whistleblower protection laws.
A Federal agency cannot discriminate against an employee or applicant with respect to the terms, conditions, or privileges of employment because of race, color, religion, sex, national origin, age, disability, marital status, genetic information, or political affiliation. One or more of the following statutes prohibit discrimination on these bases: 5 U.S.C. 2302(b)(1), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 206(d), 29 U.S.C. 791, 42 U.S.C. 2000e-16 and 2000ff.
If you believe you were a victim of unlawful discrimination on the bases of race, color, religion, sex, national origin, age, genetic information, and/or disability, you must contact an Equal Employment Opportunity (EEO) counselor within 45 calendar days of the alleged discriminatory action, or in the case of a personnel action, within 45 calendar days of the effective date of the action to try and resolve the matter informally. This must be done before filing a formal complaint of discrimination with USDOT (See,
If you believe you were a victim of unlawful discrimination based on age, you must either contact an EEO counselor as noted above or give notice of intent to sue to the Equal Employment Opportunity Commission (EEOC) within 180 calendar days of the alleged discriminatory action. As an alternative to filing a complaint pursuant to 29 CFR part 1614, you can file a civil action in a United States district court under the Age Discrimination in Employment Act, against the head of an alleged discriminating agency after giving the EEOC not less than a 30 day notice of the intent to file such action. You may file such notice in writing with the EEOC via mail at P.O. Box 77960, Washington, DC 20013, personal delivery, or facsimile within 180 days of the occurrence of the alleged unlawful practice.
If you are alleging discrimination based on marital status or political affiliation, you may file a written discrimination complaint with the U.S. Office of Special Counsel (OSC). Form OSC-11 is available online at the OSC Web site
If you are alleging compensation discrimination pursuant to the Equal Pay Act, and wish to pursue your allegations through the administrative process, you must contact an EEO counselor within 45 calendar days of the alleged discriminatory action as such complaints are processed under EEOC's regulations at 29 CFR part 1614. Alternatively, you may file a civil action in a court of competent jurisdiction within two years, or if the violation is willful, three years of the date of the alleged violation, regardless of whether you pursued any administrative complaint processing. The filing of a complaint or appeal pursuant to 29 CFR part 1614 shall not toll the time for filing a civil action.
A USDOT employee with authority to take, direct others to take, recommend, or approve any personnel action must not use that authority to take, or fail to take, or threaten to take, or fail to take a personnel action against an employee or applicant because of a disclosure of information by that individual that is reasonably believed to evidence violations of law, rule, or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety, unless the disclosure of such information is specifically prohibited by law and such information is specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs.
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Notice of guidance; response to comments.
The FAST Act included a provision that requires each State that receives funding under the National Highway Freight Program to develop a State Freight Plan that provides a comprehensive plan for the immediate and long-range planning activities and investments of the State with respect to freight and meets all the required plan contents listed in the Act. This guidance provides the minimum required elements that State Freight Plans must meet, provides a template that reflects those statutory requirements, and suggests recommended, but optional elements, that States may include in their State Freight Plans. It also provides suggestions for establishing State Freight Advisory Committees that will benefit State freight planning. This notice also responds to comments submitted in response to interim guidance on State Freight Plans and State Freight Advisory Committees published by DOT on October 15, 2012.
Unless otherwise stated in this Notice, this guidance is effective October 14, 2016.
Ryan Endorf, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone Number (202) 366-4835 or Email
The purpose of this Guidance on State Freight Plans and State Freight Advisory Committees is to provide States with information on the statutorily required elements of State Freight Plans under 49 U.S.C. 70202 and recommend approaches and information that States may include in their State Freight Plans. This guidance also strongly encourages States to establish State Freight Advisory Committees and provides suggestions as to how those Committees can help the State with its freight planning.
49 U.S.C. 70202 lists ten required elements that all State Freight Plans must address for each of the transportation modes:
1. An identification of significant freight system trends, needs, and issues with respect to the State;
2. A description of the freight policies, strategies, and performance measures that will guide the freight-related transportation investment decisions of the State;
3. When applicable, a listing of—
a. multimodal critical rural freight facilities and corridors designated within the State under section 70103 of title 49 (National Multimodal Freight Network);
b. critical rural and urban freight corridors designated within the State under section 167 of title 23 (National Highway Freight Program);
4. A description of how the plan will improve the ability of the State to meet the national multimodal freight policy goals described in section 70101(b) of title 49, United States Code and the national highway freight program goals described in section 167 of title 23;
5. A description of how innovative technologies and operational strategies, including freight intelligent transportation systems, that improve the safety and efficiency of the freight movement, were considered;
6. In the case of roadways on which travel by heavy vehicles (including mining, agricultural, energy cargo or equipment, and timber vehicles) is projected to substantially deteriorate the condition of the roadways, a description of improvements that may be required to reduce or impede the deterioration;
7. An inventory of facilities with freight mobility issues, such as bottlenecks, within the State, and for those facilities that are State owned or operated, a description of the strategies the State is employing to address those freight mobility issues;
8. Consideration of any significant congestion or delay caused by freight movements and any strategies to mitigate that congestion or delay;
9. A freight investment plan that, subject to 49 U.S.C. 70202(c), includes a list of priority projects and describes how funds made available to carry out 23 U.S.C. 167 would be invested and matched; and
10. Consultation with the State Freight Advisory Committee, if applicable.
Each of these required elements is discussed more fully in Section V of the guidance below. In addition, DOT suggests a number of optional items that States may consider including in their State Freight Plans. These optional elements are discussed more fully in Section VI below.
MAP-21 included two provisions that required the Secretary to encourage States to establish State Freight Plans and State Freight Advisory Committees. The FAST Act moved these provisions from title 23 to title 49 (Multimodal Freight Transportation) and required that States complete a State Freight Plan in order to obligate freight formula funds under 23 U.S.C. 167. State Freight Plans and State Freight Advisory Committees are complementary to other FAST Act freight provisions, such as the development of the National Freight Strategic Plan and the release of a Final National Multimodal Freight Network (NMFN; DOT released an Interim NMFN on May 27, 2016 per the statutory requirement).
Following the enactment of MAP-21 on July 6, 2012, DOT released Interim Guidance on State Freight Plans and State Freight Advisory Committees for public comment (77 FR 62596, October 15, 2012). DOT received 54 comments from State Departments of Transportation, local governments, industry groups, ports, and private individuals pertaining to various aspects of the Interim Guidance. In this section, DOT responds to these comments and describes their relevance to the new provisions in 49 U.S.C. 70201 and 70202, established under section 8001 of the FAST Act.
An important issue for some of the commenters was that it appeared to create an unnecessary burden for States by suggesting that a State include in its
To address these concerns, DOT is modifying the structure of the guidance below to clarify which elements are statutorily required versus those elements that are recommended for States to consider for optional inclusion in their State Freight Plans. As indicated in this new Guidance, some provisions for the State Freight Plans are required by the FAST Act and must be addressed in order for a State to obligate apportioned funds under the NHFP.
DOT recognizes that States vary in their transportation needs and system requirements, particularly regarding multimodal freight transportation. Some of the recommended elements may not be relevant to every State, and as such, do not have to be included in the plan. Similarly, the guidance is not intended to preclude States from supplementing their State Freight Plans with elements not described in the FAST Act or in this guidance. States have significant flexibility in creating State Freight Plans and State Freight Advisory Committees that fit their needs.
Based on a review of State Freight Plans and State Freight Advisory Committee materials that have been published by some States, DOT is confident that States, MPOs, local and tribal governments, and private entities will be able to take advantage of State Freight Plans and State Freight Advisory Committees to improve their freight planning processes. These materials are extensive in nature and far exceed many of the Plan and Advisory Committee requirements of MAP-21.
DOT will have a role in determining whether a State Freight Plan conforms to the requirements of 49 U.S.C. 70202. This review will be made using the statutorily defined requirements of section 70202 as they pertain to the specific transportation and other circumstances defined by each State. The optional elements suggested for consideration in this guidance will not be used as a factor for determining whether a State Freight Plan conforms to the requirements of 49 U.S.C. 70202.
Following the publication of the Interim Guidance in 2012, DOT received a number of comments regarding section 1116 of MAP-21. Because the FAST Act repealed section 1116 of MAP-21, DOT will not specifically address these comments. However, with respect to the new requirement in the FAST Act that States must have FAST Act-compliant State Freight Plans in order to remain eligible to obligate formula funding under the NHFP after December 4, 2017, the new Guidance below specifies that State Freight Plans, whether separate or incorporated into the Long-Range Statewide Transportation Plan, will be reviewed by DOT to determine whether the Plan satisfies the minimum requirements of 49 U.S.C. 70202.
Other commenters expressed concerns that the October 15, 2012, Interim Guidance was not sufficiently prescriptive. This set of commenters thought that the Interim Guidance should have provided more details so that States would not ignore important considerations in developing their plans. To address these concerns, we have provided additional recommended elements for consideration, along with the rationale for providing such suggestions. As previously stated, these recommendations are optional and are not meant to be exhaustive of additional considerations that could be included by a State. As addressed above, DOT recognizes that States differ in their freight considerations and capacities and these variations should be reflected in their State Freight Plans. States with unique freight characteristics are welcome to add those considerations into their State Freight Plans even if these considerations are not explicitly outlined in the guidance. DOT will monitor best practices regarding these plans and may seek to share such practices through publicly available resources like a public Web site, webinar, or future guidance.
DOT also received comments suggesting that additional categories of stakeholders should be included as part of State Freight Advisory Committees. DOT notes below that the FAST Act expands the categories of participants to be included in State Freight Advisory Committees, but also recognizes that States are free to add other participants and to exercise their discretion as to which stakeholders to include in their State freight planning process. The Guidance provided below offers suggestions for additional categories of members. Other recommendations in this Guidance are intended to assist the State in establishing protocols and best practices for State Freight Advisory Committees relative to the intent of 49 U.S.C. 70201.
A second major issue in the comments received on the October 15, 2012, Interim Guidance relates to how States should consider non-highway modes in their freight planning. Many commenters, including several State DOTs, urged that DOT encourage States to include maritime, rail, aviation, and other non-highway modes and facilities in their State Freight Plans and State Freight Advisory Committees. Some commenters, by contrast, urged that DOT not recommend inclusion of non-highway portions of the freight system.
The U.S. transportation system moved a daily average of 49 million tons of freight valued at over $53 billion in 2015 (daily value). By 2045, the U.S. population is expected to increase by 70 million more people and freight tons moved by all modes of transportation are expected to increase by 40 percent according to recent data released by the Bureau of Transportation Statistics (BTS).
State Freight Plans developed pursuant to the FAST Act are multimodal in scope. DOT views State Freight Plans as a critical resource for the States to use in prioritizing freight transportation investments and guiding future transportation policymaking. Under the FAST Act, this linkage has been reinforced; prioritization of freight projects (within a State Freight Plan) is now mandatory. Specifically, within the State Freight Plan, a freight investment plan must include a prioritized list of projects and describe how funds made available to carry out the NHFP would be invested and matched by other funding sources. 49 U.S.C. 70202(b)(9). This information will also be helpful to States, MPOs, local and tribal governments, maritime ports and other special transportation authorities, and the Federal government in the identification of freight projects that may be eligible for funding under the Nationally Significant Freight and Highway Projects program (known as the “FASTLANE program,”
State Freight Plans ultimately reflect each State's analysis of its own economy and how the key sectors of its economy rely upon the freight transportation system. The more comprehensively a State Freight Plan represents all transportation modes related to freight movement, the more useful it will be in meeting the freight transportation needs of all of the State's industries, and in helping the State to make the best freight transportation decisions. State Freight Advisory Committees, with comprehensive representation by public and private freight interests, are a highly effective means of gathering information on system needs and potential solutions to be included in State Freight Plans and for other planning processes at interstate and local levels.
DOT made extensive use of the State Freight Plans prepared in response to section 1118 of MAP-21 (or earlier State-initiated efforts) in formulating the October 2015 draft National Freight Strategic Plan required under section 1115 of MAP-21 (this requirement was renewed by the FAST Act under 49 U.S.C. 70102). The new statutory provisions in 49 U.S.C. 70202 with regard to preparing fiscally constrained multimodal freight investment plans will greatly strengthen DOT's ability to respond to requirements for future revisions of the multimodal National Freight Strategic Plan under 49 U.S.C. 70102, which requires, among other factors, the identification of freight infrastructure bottlenecks and information on the cost of addressing each bottleneck, as well as any operational improvements that could be implemented. Accurate information of this type cannot be developed at the national level but rather must rely on careful assessments at the State and MPO levels, some of which is now required in State Freight Plans.
Several comments submitted for the October 15, 2012, Interim Guidance noted that the efficiency of freight movement has an important impact on international trade and that freight transportation issues often transcend State borders. In particular, these comments suggested that State Freight Advisory Committees should also include representatives from neighboring States or at least coordinate directly on regional priorities with other States. DOT fully agrees that efficient and reliable freight movement is a critical factor in stimulating international and interstate trade and encourages States to work jointly with their State and international neighbors, as well as with regional planning organizations and corridor coalitions, to prioritize projects that can facilitate freight movement across borders. While there are no specific requirements in chapter 702 of title 49, United States Code, for participation of neighboring States and nations in State Freight Advisory Committees or in the development of State Freight Plans, DOT believes that such participation would be valuable in facilitating discussions about prioritizing mutually beneficial freight transportation investments. As such, DOT strongly encourages neighboring States and countries to work together or consult with each other during the development or updating of State Freight Plans. Additionally, for multi-state projects that would be on a fiscally constrained freight investment plan, those multi-state projects would require coordination of the States involved such that the project is accurately and consistently reflected in each State's Freight Plan.
Many commenters on the October 15, 2012, Interim Guidance addressed the issue of integrating State Freight Plans within the existing State planning process. Several commenters emphasized the role that MPOs should have in this process. Other commenters mentioned that State Freight Planning should be coordinated in part with State environmental and economic development agencies. Some commenters emphasized the role of regional planning.
DOT strongly recommends that States include all relevant parties in their freight planning processes, particularly
DOT recommends that MPOs (although not specifically listed in 49 U.S.C. 70201) be adequately represented in the State Freight Advisory Committee and in the development of the State Freight Plan. States and MPOs already coordinate planning activities in the development of Long-Range Statewide Transportation Plans and statewide transportation improvement programs (STIPs). Joint participation by State DOTs and MPOs in multimodal State Freight Advisory Committees will help ensure that State Freight Plan, TIP, and STIP processes are coordinated, fully address non-highway freight projects, and are consistent in their treatment. Existing and enhanced cooperation between States and MPOs will be vital in the development of fiscally constrained freight investment plans that must now be part of the State Freight Plan under 49 U.S.C. 70202.
One commenter on the October 15, 2012, Interim Guidance asked how States should proceed if they recently updated their State Freight Plans prior to the release of the Interim Guidance. DOT expects that this question is still relevant for States that updated their State Freight Plans to be compliant with the MAP-21 requirements. DOT notes that in order for a State to obligate NHFP (23 U.S.C. 167) funds 2 years after the date of enactment of the FAST Act (
One State commenting on the October 15, 2012, Interim Guidance objected to listing out the recommended projects, stating that it would create an expectation in the general public that they would be constructed regardless of available funding. That State expressed that projects are developed with potential sources of funding in mind, as opposed to projects being developed without consideration for how they might be funded. DOT notes that the FAST Act addresses this concern both by providing sources of dedicated freight funding (23 U.S.C. 167 and 23 U.S.C. 117) and requiring in 49 U.S.C. 70202 that a State Freight Plan include a fiscally constrained freight investment plan that includes a list of priority projects and describes how NHFP funds would be invested and matched. DOT believes that these plans will help States to identify and act on their freight priorities. Further, State Freight Plans will be more useful for policymakers at all levels of government and the public if States can provide more information in advance about prioritized projects, including information about a project's need for funding and potential funding streams.
The purpose of this document is to provide guidance on the implementation of 49 U.S.C. 70201 (State Freight Advisory Committees) and 70202 (State Freight Plans), as established under the Fixing America's Surface Transportation Act (FAST Act; Pub. L. 114-94). These concepts were initially introduced under sections 1117 and 1118, respectively, of the Moving Ahead for Progress in the 21st Century Act (MAP-21; Pub. L. 112-141). 49 U.S.C. 70201 requires the Secretary to encourage each State to establish a State Freight Advisory Committee consisting of a representative cross-section of public and private freight stakeholders. 49 U.S.C. 70202 requires each State receiving funding under 23 U.S.C. 167 (NHFP) to develop a comprehensive State Freight Plans that include both immediate and long-term freight planning activities and investments. Section 70202 specifies certain minimum contents for State Freight Plans, and provides that such plans may be developed separate from or be incorporated into the Long-Range Statewide Transportation Plans required by 23 U.S.C. 135.
The provisions for the State Freight Advisory Committees and State Freight Plans described under MAP-21 and the FAST Act are similar in content and scope, with some important distinctions. Unlike the provisions in MAP-21, which only encouraged the development of State Freight Plans,
Under 23 U.S.C. 167(i)(4), effective beginning 2 years after the date of the enactment of the FAST Act, each State that plans to obligate funds apportioned to the State under the NHFP must have developed a State Freight Plan in accordance with 49 U.S.C. 70202 (as it relates to highways), though the multimodal components of the Plan may be incomplete. In addition to the requirements for State Freight Plans under MAP-21, each FAST Act-compliant Plan must include a fiscally constrained freight investment plan and a list of the multimodal critical rural freight facilities and corridors that the State designates under 49 U.S.C. 70103 and the critical rural freight corridors and critical urban freight corridors (if these have been identified at the time of submission of the Plan) designated by the State and MPOs under 23 U.S.C. 167. FHWA has issued separate guidance on the implementation of 23 U.S.C. 167, which can be found here:
FHWA has also provided a detailed Questions and Answers document that is available here:
DOT strongly encourages all States to establish State Freight Advisory Committees. Such Advisory Committees are an important part of the process needed to develop a thorough State Freight Plan. If a State establishes a State Freight Advisory Committee, the State must consult with its respective advisory committee while developing or updating its State Freight Plan (49 U.S.C. 70202(b)(10)). Bringing together the perspectives and knowledge of public and private partners, including shippers, carriers, and infrastructure owners and operators, is important to developing a comprehensive and relevant State Freight Plan.
Pursuant to 49 U.S.C. 70202, each State that receives funding for the NHFP shall develop a comprehensive freight plan that provides for the immediate and long-range planning activities and investments of the State with respect to freight. Further, 23 U.S.C. 167(i)(4) specifies that, notwithstanding any other provision of the FAST Act, effective beginning 2 years after the date of enactment of the FAST Act (
DOT strongly encourages every State to develop a multimodal State Freight Plan for reasons in addition to enabling long-term access to funding under the NHFP. DOT understands that the effects of freight transportation are often regional or national in scope, and because freight providers own and operate private infrastructure, it can be more difficult for States to incorporate freight projects into their planning process than it is for projects that aid passenger transportation. DOT strongly encourages States to consider the performance and modal interaction of the overall freight system when developing their State Freight Plans. State Freight Plans that consider all the relevant transportation modes and performance measures (congestion reduction, safety, infrastructure condition, economic vitality, system reliability, and environmental sustainability) will be more informed and lead to better outcomes.
Section 8001 of the FAST Act made important reforms to establish and codify a National Multimodal Freight Policy, National Multimodal Freight Network, multimodal State Freight Advisory Committees, and State Freight Plans, which must address the goals of the National Multimodal Freight Policy. The FAST Act greatly increases the likelihood of widespread adoption of improved freight transportation planning and implementation by creating dedicated sources of freight funding with multimodal eligibility. Because freight transportation is critical to the economic vitality of the United States and now has a source of dedicated funding through the FAST Act, renewed attention to planning and investing for safe and efficient freight transportation will have strong positive effects on the welfare of Americans and the competitiveness of the United States in the global economy.
State Freight Plans can help States contribute to the goals of the National Multimodal Freight Policy in 49 U.S.C. 70101(b) and the goals of the NHFP in 23 U.S.C. 167(b). DOT believes strongly that these goals provide essential direction and support for the improvement of freight transportation across all modes.
The State Freight Plans can also be used to communicate the freight performance measurement targets established pursuant to MAP-21, progress and strategies to goal achievement, any extenuating circumstances or other information relevant to this regulatory requirement. [Note: At the time of the release of this Guidance, the comment period for the Notice of Proposed Rulemaking on the freight performance measures was open and DOT was soliciting input on the proposed measures.
The State Freight Plan may be developed as a separate document from, or incorporated into, the Long-Range Statewide Transportation Plan required by 23 U.S.C. 135. If the State Freight Plan is separate from the Long-Range Statewide Transportation Plan,
Due to the flexibility provided by this guidance to States regarding State Freight Plans, DOT will be reviewing State Freight Plans separately from the Long-Range Statewide Transportation and State Rail Plans, which are governed by other statutes. For
DOT released a multimodal, draft National Freight Strategic Plan for public comment on October 18, 2015 (see
Authorization level under the FAST Act: There is no formula or discretionary funding specifically designated for State Freight Plans or to establish or operate State Freight Advisory Committees. Nevertheless, there are several resources with eligibility to assist in the activities that support these elements of the FAST Act.
States may use funding apportioned under the Surface Transportation Block Grant Program (23 U.S.C. 133) for developing State Freight Plans, as well as funding set aside from apportioned programs for the State Planning and Research Program (23 U.S.C. 505). Similarly, States can use funds from the new NHFP to support freight planning and outreach, including efforts to develop or update State Freight Plans and support State Freight Advisory Committees. They may also use carryover balances from National Highway System (NHS) funds authorized under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU; 23 U.S.C. 103(b)(6)(E) as in effect on the day before enactment of MAP-21) that can be used for transportation planning that benefits the NHS in accordance with 23 U.S.C. 134 and 135 (section 1104 of MAP-21 amended 23 U.S.C. 103, eliminating the National Highway System Program under section 103; however, the carryover balances remain available for planning activities that benefit the NHS).
DOT strongly recommends that States use a collaborative process for freight planning that involves all of the relevant stakeholders acting within or affected by the freight transportation system. To help accomplish this and per guidance found in 49 U.S.C. 70201, DOT strongly encourages States to establish, continue, or expand membership in State Freight Advisory Committees. A forum of this type that is similar from State to State will also facilitate the ability of public and private stakeholders, including but not limited to cargo carriers and logistics companies, and safety, community, energy, and environmental stakeholders, to identify and engage the appropriate freight planning organization in each State. However, DOT emphasizes that the establishment of State Freight Advisory Committees is not required by statute or by DOT. Each State has the option of establishing a State Freight Advisory Committee at its own convenience and subject to its own conditions, though pursuant to 49 U.S.C. 70201(b), the role of each committee shall include at a minimum the items listed in section 70201(b).
As specified in section 8001 of the FAST Act, State Freight Advisory Committees should include representatives of a cross-section of public and private sector freight stakeholders. These might include, but are not limited to, representatives of the following:
• Ports;
• Freight railroads;
• Shippers, freight forwarders;
• Carriers, including carriers operating on their own infrastructure (such as railroads and pipelines) and carriers operating on publicly-owned infrastructure (such as airlines, railroads, trucking companies, ocean carriers, and barge companies);
• Freight-related associations;
• Third-party logistics providers;
• Freight industry workforce;
• The transportation department of the State;
• MPOs, councils of government, regional councils, organizations representing multi-State transportation corridors, tribal governments, and local governments, and regional planning organizations;
• Federal agencies;
• Independent transportation authorities, such as maritime port and airport authorities of varying sizes, toll highway authorities, and bridge and tunnel authorities;
• Safety partners and advocates
• State and local environmental and economic development agencies;
• Other private infrastructure owners, such as pipelines;
• Hazardous material transportation providers;
• Representatives of environmental justice populations potentially affected by freight movement;
• University Transportation Centers and other institutions of higher education with experience in freight.
The inclusion of freight carriers, freight associations, and shipper and logistics companies in State Freight Advisory Committees is essential, as much of the innovation in freight carriage, management, and planning for future systems takes place among these organizations. Planning for freight without consulting with these organizations would constitute a significant gap in understanding the nature of freight needs and concerns. Carriers should represent a range of sizes and specialties, including full truck load, less than truckload, and small package delivery services. Similarly, participation by shipper and logistics companies of different sizes can provide critical information about warehousing and distribution service needs.
DOT strongly encourages States to include representatives from MPOs in freight planning processes because many freight projects are located within metropolitan areas. For that reason, MPOs and State DOTs must be in agreement if such projects are to be included in STIPs and TIPs and Long-Range Metropolitan and Long-Range Statewide Transportation Plans. Similarly, local governments, which often have land use authority in locations of important freight activity, should be included. MPOs, local governments, and civic organizations are concerned about community impacts of freight projects and early collaboration with those organizations during the freight project planning process can help to address concerns and opportunities. For example, community input and engagement with railroad representatives can help identify existing or emerging impacts of growth in rail activity that affect mobility, throughput, and safety at railway-roadway grade crossings. This focus in a State Freight Advisory Committee can help inform strategies and identify areas for investment in a State Freight Plan to resolve conflicts and improve Ladders of Opportunity in communities. Similarly, the inclusion of independent transportation authorities, such as maritime port and airport authorities, toll highway authorities, and bridge and tunnel authorities will help minimize the fragmentation of
The FAST Act made important changes to the Tribal Transportation Program, including (but not limited to) the creation of the Tribal Transportation Self-Governance Program (section 1121 of the FAST Act; 23 U.S.C. 207) that extends many of the self-governance provisions of Title V of the Indian Self-Determination and Education Assistance Act to transportation. Representation of tribal governments in State freight planning is essential to development of a comprehensive State Freight Plan.
State DOTs already coordinate State involvement in both freight and passenger rail operations, and as required under section 330 of the Passenger Rail Investment and Improvement Act (PRIIA), develop FRA-accepted State Rail Plans. Rail, highway, and other modal divisions (pipeline safety, maritime/ports, and aviation airports) within the State DOT, or in other agencies of the State government, should be represented if deemed appropriate by the State. States should also consider the inclusion of other State agencies, including those engaged in law enforcement and emergency planning, which may have the authority to regulate and enforce speed limits on roads and highways, issue permits for higher-weight truck movements and longer combination vehicles (tractor-trailer combinations with two or more trailers) on State roads, and plan for emergency operations. Participation of Federal and State environmental agencies may prove useful in helping project sponsors anticipate and mitigate potential environmental issues that could arise from freight projects. Additionally, these agencies establish and enforce air and water regulations that have important effects on freight transportation. Joint planning with multiple participants within the framework of State Freight Advisory Committees can facilitate better solutions and prevent future conflicts.
States are encouraged to invite representatives from neighboring States and nations (Canada and Mexico, and their subordinate Provinces and States, as appropriate) to participate in State Freight Advisory Committees. They should also consider inviting councils of government and regional councils (if not already represented through the MPO), organizations representing multi-State transportation corridors, and other local and regional planning organizations to participate. Participation by Federal government representatives is also encouraged. These participants can play an important role in coordinating planning and funding for larger freight projects that extend beyond the boundaries of MPOs and States. Similarly, participation by regional economic development offices and State or regional Chambers of Commerce can be beneficial. These organizations may also have recommendations for other participants.
Representatives from the freight transportation industry workforce are critical participants in the freight planning process. Transportation workers provide input in identifying bottlenecks and other inefficiencies, safety problems, methods to respond to freight labor shortages, truck parking capacity and information needs, applications of new technologies, and other factors. Similarly, independent transportation experts, including academic specialists and industry consultants are valuable additions to the planning effort.
In all cases, DOT expects that State Freight Advisory Committee participation will vary from State to State and acknowledges that available funding, State DOT resources, and specific characteristics of a State's freight infrastructure will lead to significant differences in the size and composition of such Committees.
The FAST Act directs that State Freight Advisory Committees shall:
• Advise the State on freight-related priorities, issues, projects, and funding needs;
• Serve as a forum for discussion of State transportation decisions affecting freight mobility;
• Communicate and coordinate regional priorities with other organizations (for example, among a State's DOT, MPOs, tribal and other local planning organizations);
• Promote the sharing of information between the private and public sectors on freight issues; and
• Participate in the development of the State Freight Plan.
DOT notes that the multimodal, multiagency mix of participants recommended above offers an excellent forum for the exchange of information needed to develop the required components of the State Freight Plan (described in more detail below), such as in the identification of significant freight system trends, needs, and issues with respect to the State; a description of how innovative technologies and operational strategies, including freight intelligent transportation systems, that improve the safety and efficiency of freight movement are considered (the private sector is leading the way in the deployment of connected, automated and autonomous systems); creating an inventory of facilities with freight mobility issues, such as bottlenecks; development of strategies to mitigate that congestion or delay; and development of freight investment plans that combine public and private funding.
The identification of problems and opportunities in a multimodal forum can lead to innovative solutions that may never rise to the level of a State Freight Plan priority. By facilitating State, MPO, and local government access to highly skilled agency and private freight expertise, the Committee focuses and facilitates government efforts to incorporate freight into day-to-day planning efforts and raise the visibility of freight issues to levels not previously achieved. For this reason, DOT recommends that State Freight Advisory Committees meet on a regular basis, not solely for the purpose of developing or revising a State Freight Plan.
DOT notes that if a State is establishing or updating a State Freight Plan and also has opted to create a State Freight Advisory Committee, 49 U.S.C. 70202 requires that the State must consult with its State Freight Advisory Committee on the State Freight Plan. DOT believes that it will in almost all cases be more constructive to prepare a useful State Freight Plan based on State Freight Advisory Committee review and input. The FAST Act does not require, however, that a State Freight Advisory Committee be established or provide its approval for a State Freight Plan to become final. As such, the authority of the State to go forward with a State Freight Plan is not diminished by establishing a Committee. A State Freight Advisory Committee is advisory in nature and is not subject to Federal open meeting laws, though State open meeting laws may apply. DOT strongly encourages States to conduct State Freight Advisory Committee business in an open manner so that interested persons are able to observe any meeting of the Committee and be afforded opportunities to provide input.
The FAST Act, through 23 U.S.C. 167(d)(2), provides that the Federal Highway Administrator, in re-designating the Primary Highway Freight System, shall provide an opportunity for State Freight Advisory Committees, as applicable, to submit additional route miles for consideration. Similarly, 49 U.S.C. 70103(c)(2)(j) authorizes the Under Secretary of Transportation to consider recommendations by State Freight Advisory Committees for facilities to be
Beginning on December 4, 2017, to be eligible to obligate Federal funds provided through the NHFP (23 U.S.C. 167), the FAST Act requires that a State has developed a State Freight Plan that provides a comprehensive plan for the immediate and long-range planning activities and investments of the State with respect to freight (49 U.S.C. 70202), except that multimodal elements of the plan need not be complete (23 U.S.C. 167(i)(4)).
DOT recognizes that many States have recently published State Freight Plans or are in the process of updating their State Freight Plans to be compliant with MAP-21 requirements. DOT emphasizes that those Plans can be updated (including by amendment) to be compliant with the FAST Act requirements. The required elements of State Freight Plans under section 1118 of MAP-21 and under 49 U.S.C. 70202, as amended by the FAST Act, are similar and are listed below. However, there are several additional requirements added under the FAST Act, meaning that all MAP-21 compliant State Freight Plans must be updated to include these requirements if they are not already in the plans. These new requirements have been highlighted in bold:
1. An identification of significant freight system trends, needs, and issues with respect to the State;
2. A description of the freight policies, strategies, and performance measures that will guide the freight-related transportation investment decisions of the State;
3. When applicable, a listing of—
• multimodal critical rural freight facilities and corridors designated within the State under section 70103 of title 49 (National Multimodal Freight Network);
• critical rural and urban freight corridors designated within the State under section 167 of title 23 (National Highway Freight Program);
4. A description of how the plan will improve the ability of the State to meet the national multimodal freight policy goals described in section 70101(b) of title 49, United States Code and the national highway freight program goals described in section 167 of title 23;
5. A description of how innovative technologies and operational strategies, including freight intelligent transportation systems, that improve the safety and efficiency of the freight movement, were considered;
6. In the case of roadways on which travel by heavy vehicles (including mining, agricultural, energy cargo or equipment, and timber vehicles) is projected to substantially deteriorate the condition of the roadways, a description of improvements that may be required to reduce or impede the deterioration;
7. An inventory of facilities with freight mobility issues, such as bottlenecks, within the State, and for those facilities that are State owned or operated, a description of the strategies the State is employing to address those freight mobility issues;
8. Consideration of any significant congestion or delay caused by freight movements and any strategies to mitigate that congestion or delay;
9. A freight investment plan that, subject to 49 U.S.C. 70202(c), includes a list of priority projects and describes how funds made available to carry out 23 U.S.C. 167 would be invested and matched; and
10. Consultation with the State Freight Advisory Committee, if applicable.
State Freight Plans issued prior to section 1118 of MAP-21 may need substantial modification to comply with the FAST Act if they were not previously updated for MAP-21. In this instance, issuance of a new consolidated FAST Act-compliant State Freight Plan is strongly encouraged; however, the new plan could make extensive use of material from a prior State Freight Plan.
The action of amending or updating a State Freight Plan to comply with the FAST Act will constitute a formal update of the plan and would restart the clock for submitting an updated State Freight Plan, which must be updated at least once every 5 years.
DOT wishes to emphasize that the elements listed in 49 U.S.C. 70202 (which are shown above) are the only required elements of State Freight Plans. Each element, as it relates to highways, must be addressed if a State wishes to obligate NHFP funds available under 23 U.S.C. 167 after December 4, 2017. Note that if a State wishes to obligate NHFP funds for a freight intermodal or freight rail project, that project must be included in the fiscally constrained freight investment plan as well. As long as State Freight Plans cover the required elements, they may be organized in any structure that works best for individual States.
For States that have neither developed nor recently updated their State Freight Plan to reflect MAP-21 requirements and are looking for a possible model to address the FAST Act requirements, DOT suggests the following structure as a possible, but not mandated, model that States can follow to address all of the statutorily required criteria:
1. Identification and Inventory of Freight System:
a. An identification of significant freight system trends, needs, and issues with respect to the State;
b. An inventory of facilities with freight mobility issues, such as bottlenecks, within the State;
c. When applicable, a listing of—
i. Multimodal critical rural freight facilities and corridors designated within the State under section 70103 of title 49; and
ii. Critical rural and urban freight corridors designated within the State under 23 U.S.C. 167;
2. Consideration of any significant congestion or delay caused by freight movements and any strategies to mitigate that congestion or delay;
3. Description of Policies, Goals and Strategies:
a. A description of the freight policies, strategies, and performance measures that will guide the freight-related transportation investment decisions of the States;
b. A description of how the Plan will improve the ability of the State to meet the National Multimodal Freight Policy goals described in 49 U.S.C. 70101(b) and the NHFP goals described in 23 U.S.C. 167(b);
c. In the case of roadways on which travel by heavy vehicles (including mining, agricultural, energy cargo or equipment, and timber vehicles) is projected to substantially deteriorate the condition of the roadways, a description of improvements that may be required to reduce or impede the deterioration;
d. For those facilities that are State-owned or operated, a description of the strategies the State is employing to address the freight mobility issues;
e. A description of strategies to mitigate any significant congestion or delay caused by freight movements;
f. A description of how innovative technologies and operational strategies,
4. A freight investment plan that, subject to 49 U.S.C. 70202(c), includes a list of priority projects and describes how funds made available to carry out 23 U.S.C. 167 would be invested and matched;
5. Demonstration of consultation with the State Freight Advisory Committee, if applicable.
This optional organizational scheme does not change or reduce the statutorily-required elements of the State Freight Plan, but merely provides one possible structure that allows for consolidation of related elements and information. As noted previously, States have flexibility to follow any structure they wish as long as they contain the statutorily required elements noted above.
DOT reiterates that the only elements that State Freight Plans must include are those identified in the statute and outlined in the previous section “V. STATE FREIGHT PLANS—Required Elements.” This section (SECTION VI) suggests optional methods by which States might respond to the above requirements and identifies a number of other items that States may consider including in their State Freight Plans. These items have been identified through a review of research papers, studies of best industry practices, and State Freight Plans that were completed immediately following MAP-21. DOT is providing this information to help inform each State's freight planning process; but ultimately, it is up to each State to determine which if any of these additional elements to include.
A State Freight Plan must address a 5-year forecast period, although DOT strongly encourages an outlook of two decades or more. While the FAST Act provides that “A State freight plan described in subsection (a) shall address a 5-year forecast period” (49 U.S.C. 70202(d)), the Act also states that the plan should provide “a comprehensive plan for the immediate and long-range planning activities and investments of the State with respect to freight” (49 U.S.C. 70202(a)). In almost all transportation planning exercises, long-range planning necessarily exceeds a period of 5 years. DOT notes that a freight plan horizon of only 5 years would not enable States to do more than list present problems and projects already in the development pipeline, without respect to longer-term trends and new technologies. In summary, whereas a planning forecast of 5 years is sufficient (and must be provided) to meet the statutory requirement, longer outlooks supplementing the five year forecast are strongly recommended for the overall State Freight Plan—if possible, corresponding at least to the 20-year outlook of the Long-Range Metropolitan and Long-Range Statewide Transportation Plans. Carefully developed forecasts of freight movements will be essential to the success of a freight plan whether it cover a 5-year period, a 20-year period or longer timeframe. For example, it will be important to have accurate estimates of freight moving along a particular corridor and the numbers of trucks, trains, etc. associated with moving that freight in an efficient manner in order to select the most appropriate project or projects for that corridor. Improved freight travel modeling is necessary for estimating freight emissions accurately and to better inform alternatives analysis for freight projects, including multi-modal freight planning. To assist States in long term freight planning Section VIII of this guidance contains a number of data and analysis sources that may prove useful. DOT continues to support further improvements in freight modeling through its freight model improvement program.
A special exception to this guidance on a 20-year outlook periods applies to the fiscally constrained Freight Investment Plan component of the State Freight Plan (49 U.S.C. 70202(c)), which addresses the NHFP funding timeframe and can be updated more frequently than the five-year requirement for the entire State Freight Plan. Fiscal constraint requires that revenues in transportation planning and programming (Federal, State, local, and private) are identified and “are reasonably expected to be available” to implement the Long-Range Metropolitan Transportation Plan and the STIP/TIP, while providing for the operation and maintenance of the existing highway and transit systems. In addition, revenues must be “available or committed” for the first 2 years of a TIP/STIP in air quality nonattainment and maintenance areas (23 CFR 450.324(e) and 23 CFR 450.216(a)(5)). Long-Range Statewide Transportation Plans are not required to be fiscally constrained, however; and in some cases, States may not be able to provide a fiscally-constrained state-wide list of freight projects exceeding the planning period of the STIP. Thus, DOT recommends the Freight Investment Plan, at a minimum, be carefully aligned with the TIP and STIP documents for the respective State. Aligning this investment plan with the above-referenced documents enhances the State's ability to better prioritize their freight projects and ensures coordination between the State DOT and the MPOs. States may opt to extend the period of their Freight Investment Plans to longer intervals, including 20-year periods that correspond to the Statewide and metropolitan long-range plans, if this would help them for freight-planning purposes.
The FAST Act does not provide instructions on the volume of the information to be included or the thoroughness of a State Freight Plan. DOT notes that the contents of the State Freight Plan and its necessary components should comply with what a State determines is needed to guide planning and investment activities. Many States have already prepared State Freight Plans in response to section 1118 of MAP-21 that provide extensive multimodal and other useful information in keeping with the goal of improving their freight planning. DOT supports these State efforts to improve their freight planning and invites the inclusion of any aspects of freight planning that a State believes add value to its planning effort in addition to addressing the required components of the FAST Act.
DOT has organized this section around the statutory requirements of 49 U.S.C. 70202 to provide context for where optional elements can supplement the required elements. Bold items are the statutory requirements described in Section V; non-bold items are the optional elements, or clarifying statements.
1. An identification of significant freight system trends, needs, and issues with respect to the State;
States have broad flexibility in addressing the trends, needs, and issues of their freight systems. To enhance the identification of these issues, DOT recommends, but does not require, that the State Freight Plan begin with a discussion of the role that freight transportation plays in the State's overall economy, and how the economy is projected to grow or change. This section could identify those industries which are most important to the economy of the State and the specific freight transportation modes and facilities most vital to the supply chains
The following are possible items to consider when identifying the economic trends and forecasts that will affect freight:
• Global, national, regional, and local economic conditions and outlooks, particularly those of the State, neighboring States or countries, and principal trading partners;
• Population growth and location;
• Income and employment by industry and service sector, including the expected employment by each sector of the transportation industry;
• Freight attributes of industry and service sectors (including heavy freight, less than truckload freight, and small package delivery);
• Type, value, and quantity of imports and exports;
• Industrial and agricultural production forecasts; and
• Forecasts of freight movements by commodity type and location, including small package deliveries associated with e-commerce, and projected port or rail freight activity.
DOT notes that when there is a high degree of uncertainty about future economic, industrial, and technological conditions, (
DOT recommends that the State Freight Plan describe the conditions and performance of the State's freight transportation system, including trends in conditions and performance. This analysis, if the State chooses to do it, would help to identify needs for future investment within the State. If a State has already conducted an analysis of the conditions and performance of its overall public infrastructure, that analysis could be referenced or incorporated into the State Freight Plan in so far as it pertains to the freight system.
Information on the condition and performance of private infrastructure is also encouraged, although it is acknowledged that this information is more difficult to obtain. State Rail Plans and other sources could be used to gather information on some aspects of freight rail and rail bridge data (
Data on port and waterway conditions and performance may also be available from port authorities, in Port Master Plans, or from automatic identification systems (AIS) for vessels and Global Positioning System (GPS) probe data for trucks in port areas and operating on port access roads. More information about performance data for measuring mobility for non-highway modes is provided in Item 7, “An inventory of facilities with freight mobility issues,” below.
DOT acknowledges, however, that the FAST Act does not specifically require condition and performance data in State Freight Plans. States are not required or expected to undertake such an evaluation solely for the purpose of informing the State Freight Plan.
2. A description of freight policies, strategies, and performance measures that will guide the freight-related transportation investment decisions of the State;
This section of the State Freight Plan is important for providing the overall approach the State will take to address the challenges described in the preceding section. The policies and strategies in the State Freight Plan are likely to reflect a mix of State legislative direction, discretionary decisions by State DOTs and other State agencies, decisions by other States, plans by MPOs, local and tribal governments, special transportation authorities (including port, airport, and toll authorities); and the accommodation of plans by private sector companies, such as railroads, marine terminal operators, pipeline companies, trucking companies, and others. It is recommended that the State Freight Plan also identify any statutory and State constitutional constraints on freight-related investments and policies, such as prohibitions on spending State funds on certain kinds of infrastructure. The State could also discuss regional freight planning activities in which the State participates, identify freight-related institutions within the State, and explain the governance structures and funding mechanisms for such institutions.
DOT recommends that the State explain how it will measure the success of its strategies, policies, and investments in achieving the goals and
3. When applicable, a listing of—
a. Multimodal critical rural freight facilities and corridors designated within the State under section 70103 of title 49; and
b. Critical rural and urban freight corridors designated within the State under section 167 of title 23;
Compliance with this requirement of the FAST Act is straightforward: If these corridors have been designated pursuant to the FAST Act, they should be included in the State Freight Plan. Therefore, Plans may need to be capable of being updated if or as these corridors are changed or redesignated. DOT also suggests, but does not require, States to provide an inventory of the State's freight transportation assets, both publicly and privately owned, that it deems most significant for its freight planning purposes. This optional list could include elements not included in the National Highway Freight Network or the National Multimodal Freight Network, such as locally important freight roads and bridges not on these networks, short line railroads, smaller border crossings, water (including port) facilities, waterways, pipeline terminals, smaller airports, etc. It also could include warehousing, freight transfer facilities, and foreign trade zones located in the State.
4. A description of how the plan will improve the ability of the State to meet the national multimodal freight policy goals described in section 70101(b) of title 49 and the national highway freight program goals described in section 167 of title 23;
DOT notes that the goals of the National Multimodal Freight Policy are extensive and pertain to the National Multimodal Freight Network (49 U.S.C. 70103). These goals are to:
(1) Identify infrastructure improvements, policies, and operational innovations that strengthen the contribution of the National Multimodal Freight Network to the economic competitiveness of the United States, reduce congestion and eliminate bottlenecks on the National Multimodal Freight Network, and increase productivity, particularly for domestic industries and businesses that create high-value jobs;
(2) Improve the safety, security, efficiency, and resiliency of multimodal freight transportation;
(3) Achieve and maintain a state of good repair on the National Multimodal Freight Network;
(4) Use innovation and advanced technology to improve the safety, efficiency, and reliability of the National Multimodal Freight Network;
(5) Improve the economic efficiency and productivity of the National Multimodal Freight Network;
(6) Improve the reliability of freight transportation;
(7) Improve the short- and long-distance movement of goods that travel across rural areas between population centers, travel between rural areas and population centers, and travel from the Nation's ports, airports, and gateways to the National Multimodal Freight Network;
(8) Improve the flexibility of States to support multi-State corridor planning and the creation of multi-State organizations to increase the ability of States to address multimodal freight connectivity;
(9) Reduce the adverse environmental impacts of freight movement on the National Multimodal Freight Network; and
(10) Pursue the goals described in this subsection in a manner that is not burdensome to State and local governments.
The goals of the NHFP (23 U.S.C. 167(b)) are similar, but focus on investing in infrastructure improvements and implementing operational improvements on the highways of the United States.
It is noteworthy that the National Multimodal Freight Policy goals are more comprehensive of freight transportation issues than are the required elements of State Freight Plans. States should strongly consider emphasizing aspects of their State goals and strategies intended to improve safety, security, and resiliency of the freight system, including through the use of enhanced designs, technologies, and multimodal strategies. Safety in particular is of paramount concern to the public and policy makers with more than 4,500 freight-related fatalities nationally in 2013.
It would be particularly informative to address how the State is addressing the role of climate change, which is increasingly likely to adversely affect the safety, reliability, and resiliency of the freight transportation system. Similarly, strong consideration should be given to describing how the State plans to mitigate the effects of freight transportation on communities, particularly minority and low-income communities, and the environment. They are encouraged to discuss plans to reduce noise, vibration, air, light pollution, barriers to movements in communities, etc. and provide information on freight investments that are intended to support economic opportunities for disadvantaged and low-income individuals, veterans, seniors, youths, and others with local workforce training, employment centers, health care, and other vital services.
Although not cited as a component of the National Multimodal Freight Policy or the NHFP goals, States are invited to provide information on how they will seek to develop and maintain an adequate workforce for the freight transportation industry, including opportunities for small and disadvantaged business enterprises.
DOT recommends that these goals be addressed sequentially in the State Freight Plan, but this is not mandatory. Where possible, DOT recommends that State goals and policies (addressed under Item 2, “A description of freight policies, strategies, and performance measures,” above) should be associated with comparable components of the National Multimodal Freight Policy and the NHFP. DOT also recommends that each State identify which goals it believes to be most important and merit the largest focus. DOT acknowledges that a State may not have specific goals or investments pertaining to all elements of the National Multimodal Freight Policy or the NHFP and notes that this is not required for a compliant State Freight Plan.
5. A description of how innovative technologies and operational strategies, including freight intelligent transportation systems, that improve the
In the last few years, the deployment of advanced driver assistance programs has accelerated rapidly. Connected autonomous vehicles, including trucks, will become increasingly common in the coming decades. Intermodal transfers will increasingly be automated at ports and inland facilities. These and other technologies, including intelligent transportation systems, promise to greatly improve the safety and efficiency of freight and passenger movements. They will enable freight carriers of all modes and passenger cars and trains to make safer and more efficient use of existing infrastructure capacity due to fewer collisions, more efficient and coordinated vehicle operations, and the ability to rapidly route around congested locations, including corridors with significant transit lines and high pedestrian and bicycle traffic. Freight mobility integration into communities with Complete Streets policies can reduce bicycle and pedestrian fatalities and injuries, and aid States in meeting new Safety Performance Measures. Safety improvements are already being realized through features such as automated braking and lane departure warning systems, but impacts will become much more pronounced over the next 10-20 years. As such, DOT strongly encourages States, when developing or updating their State Freight Plans, to thoroughly explore the abilities of these new technologies and how they will affect the need to modify or expand existing infrastructure.
The private sector has been leading the way with regard to applications of advanced driver assistance systems, large data sets to plan and coordinate vehicle and freight logistics, new vehicle and engine technologies, unmanned aircraft and ground systems, and many other innovative applications of technology. As such, it would be remarkably difficult to develop a credible forecast of the use of innovative technologies and operational strategies within a State or across its borders without extensive consultation with private terminal operators, freight carriers, third party logistics providers, academic institutions, and other participants in the freight transportation system. Forums such as State Freight Advisory Committees provide excellent opportunities for State and other public entities to consult with private interests to acquire information on their expected rate of adoption of new technologies, how these technologies will impact the freight system, and the means by with the public sector can best accommodate them with infrastructure investments, intelligent transportation system deployment investments, and regulatory support.
Special studies done by agency experts, consultants, and State academic institutions are a valuable source of information in the development and deployment of Vehicle to Vehicle (V2V) and Vehicle to Infrastructure (V2I) technologies.
6. In the case of roadways on which travel by heavy vehicles (including mining, agricultural, energy cargo or equipment, and timber vehicles) is projected to substantially deteriorate the condition of the roadways, a description of improvements that may be required to reduce or impede the deterioration;
The recent energy boom in the United States led to a tremendous increase in the exploration and production of energy resources. The heavy trucks and freight flows necessary to support the energy boom have in some cases led to accelerated deterioration of roads and bridges not originally built for large volumes of heavy trucks. These adverse impacts can be significant. Movement of agricultural products, lumber, and coal by trucks at overweight conditions can also contribute to road and bridge damage, as can some heavy containers handled through U.S. ports. Of course, not all States will be impacted in similar ways. DOT recommends that State Freight Plans make use of existing research, to the extent possible, to address the impacts of heavy vehicles.
In general, the State Freight Plan should address the problems and strategies to manage heavy freight vehicles on roadways. This analysis can also consider the viability of shifting heavy freight to modes other than highways. DOT recommends, but does not require, that the State Freight Plan address special needs of waterways, ports, and railways to accommodate vessels and trains used to move very heavy resource-related materials.
7. An inventory of facilities with freight mobility issues, such as bottlenecks, within the State, and for those facilities that are State owned or operated, a description of strategies the State is employing to address the freight mobility issues;
The statute does not provide specific instructions as to what qualifies as a significant mobility impediment or bottleneck, leaving this determination to the State. States have a significant degree of flexibility to determine which facilities most concern them based on methods they employ to measure mobility. State Freight Plans may emphasize the identification of freight facilities that will likely be on the National Highway Freight Network and the National Multimodal Freight Network, but States are encouraged to identify any significant intermodal connector/first- and last-mile or other mobility problems even if not on these networks. States are strongly encouraged to describe mobility issues associated with non-highway modes, particularly when occurring on the National Multimodal Freight Network established under the FAST Act (49 U.S.C. 70103). States are also strongly encouraged to consider freight mobility areas occurring in urban settings that affect multiple transportation users including transit riders, bicyclists, and pedestrians.
Performance measurement to understand freight flows and bottlenecks is important for understanding where investments, both operational and capital, could best help improve the freight network. In the discussion of Item 1, “An identification of significant freight system trends,” DOT describes various forms of performance metrics available to States. However, with regard to measuring freight mobility, DOT also recommends consideration of methods that address the fluidity of freight movement through the use of multimodal data and analysis to understand source to destination freight trips. Many States have used truck probe data and truck counts to evaluate freight performance at the facility level. DOT and partners are making available resources for data and approaches to help with fluidity analyses that better illuminate freight bottlenecks at the system level, including through use of data provided
Until consistent national-level freight fluidity data are available, DOT notes that there are numerous potential sources of information on facilities with freight mobility issues. One particularly valuable resource is the State Freight Advisory Committee. Public and private participants in the State Freight Advisory committee will often have first-hand, specific data about freight mobility problems in and on public and private facilities throughout the State. A number of States, MPOs, and regional or corridor coalitions have developed detailed studies of mobility problems and solutions. States may also consult reports about the locations of major highway freight bottlenecks issued periodically by the American Transportation Research Institute (ATRI).
Information about railroad bottlenecks may be available in State Rail Plans, or through consultation with railroads serving the State. Similarly, MPOs can provide information about locations where railroad-highway crossings or railroad-railroad crossings create congestion for vehicles, trains, pedestrians, and non-motorized vehicles, including bicycles. Railroad unions may be able to share important concerns about bottlenecks. DOT notes that, because railroad freight and railroad-highway grade crossing and separation projects are eligible for funding under the Nationally Significant Freight and Highway Projects (FASTLANE Grants) program and the NHFP, railroads will have significant new incentives to participate in multimodal freight planning at a State, MPO, and local level.
Port authorities, either participating through State Freight Advisory Committees, MPOs, or in direct consultation with the State, can provide valuable information about mobility and other constraints facing the port, including landside connections to highway and railroad systems, as well as connections to inland waterway systems and pipelines. Their Master Plans and other planning documents can also provide forecasted volumes that are useful for predicting where future mobility and other constraints may occur. In some States, the State DOT is responsible for port investments and will already have mobility issues identified. Port and maritime labor organizations, marine terminal operators, barge and vessel operators, and maritime and port industry associations can be accessed directly to identify facilities with mobility constraints or collectively through State Freight Advisory Committees.
All aspects of the energy transportation pipeline industry are regulated to some extent by Federal and State agencies, which may be able to provide information on congested segments and facilities. Similarly, pipeline operators and their associations may contribute useful information. Potential methods to present solutions to the mobility problems are identified in the next section, immediately below.
8. Consideration of any significant congestion or delay caused by freight movements and any strategies to mitigate that congestion or delay;
Once locations of facilities with mobility impediments to freight movement are identified, State DOTs may make quantitative or qualitative assessments of delay to freight movements on both local and network bases and the extent to which freight is a major contributor to the delay. Strategies to address congestion and delay can be drawn from any source preferred by the State, including pre-existing evaluations and plans, but States are encouraged to consider network effects of mitigation actions, and where possible, to look to a broad mix of solutions, including adding multimodal capacity, improved intelligent transportation systems and technological solutions, changed operating procedures (
Consultation with the various parties participating in the State-wide assessment of mobility impediments can yield essential information about alternatives not previously considered, and, as noted earlier, can inform States about rapidly emerging technology deployments in the private sector. Private freight carriers may also share their plans to address rail, port, waterway, pipeline, and air cargo capacity problems, which may affect State plans for highway capacity projects linked to these facilities or otherwise affected by them.
9. A freight investment plan that, subject to 49 U.S.C. 70202(c)(2), includes a list of priority projects and describes how funds made available to carry out section 167 of title 23 would be invested and matched;
As required in 49 U.S.C 70202(c)(2), the freight investment plan component shall include a project, or identified phase of a project, only if funding for completion of the project can be reasonably anticipated to be available for the project within the time period identified in the freight investment plan. In the State Freight Plan, the term “fiscally-constrained” has the same meaning as is applied to TIPs and STIPs. Multi-state projects would require coordination of the States involved such that the project is accurately and consistently reflected in each State's Freight Plan.
All freight projects that are included in the State Freight Plan and which involve the expenditure of public funds should necessarily be included in TIPs, STIP, and be consistent with Long-Range Metropolitan and Statewide Transportation Plans. To the extent that States have prepared economic analysis for specific projects, DOT encourages States to consider the results of those analyses when determining which projects are included on their freight investment plan, and also to refer to the results of benefit-cost analyses, as appropriate, when and if the project is mentioned in the State Freight Plan.
10. Consultation with the State Freight Advisory Committee, if applicable.
Each State should provide information summarizing its consultation efforts with their State Freight Advisory Committee (if one has been established). Possible methods of doing this are to reference or summarize minutes of the meetings of the Committee with regard to discussions of the State Freight Plan. Other methods are acceptable, including the incorporation of a written position paper from the State Freight Advisory Committee. DOT notes that there is no statutory requirement that a State Freight Advisory Committee must approve a State Freight Plan.
DOT encourages each State to designate a freight transportation coordinator to facilitate effective communication with the FHWA Division Office in that State regarding the submission of State Freight Plans and freight investment plans. A point of contact can help streamline information exchange with the operating administrations of DOT and freight stakeholders, and help ensure that freight transportation needs are given adequate consideration in the transportation planning process. Within
This point of contact would also be useful in managing the flow of information between the State and DOT on other FAST Act elements, such as the designation of critical urban freight corridors, critical rural freight corridors, changes to the Primary Highway Freight System, and inputs to the National Freight Strategic Plan and National Multimodal Freight Network. The DOT-designated Marine Highway Network is also included on the Interim National Multimodal Freight Network, and the State points of contact can request edits or amendments to that network by contacting the Maritime Administration's Gateway Directors.
The operating administrations of DOT and other departments in the U.S. Government provide a wide range of data and analysis resources to assist States in the freight planning process. The following is a series of links to Internet Web sites that provide useful data and analysis resources:
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (OFAC) is publishing the names of four individuals and nine entities whose property and interests in property are blocked pursuant to Executive Order 13581 of July 24, 2011, “Blocking Property of Transnational Criminal Organizations,” and who have been added to OFAC's List of Specially Designated Nationals and Blocked Persons (SDN List).
OFAC's actions described in this notice were effective on October 11, 2016.
Associate Director for Global Targeting, tel.: 202/622/2420, Associate Director for Sanctions Policy and Implementation, tel.: 202/622/2480, Office of Foreign Assets Control, or Chief Counsel (Foreign Assets Control), tel.: 202/622/2410, Office of the General Counsel, Department of the Treasury (not toll free numbers).
The SDN List and additional information concerning OFAC sanctions programs are available from OFAC's Web site at
On October 11, 2016, OFAC blocked the property and interests in property of the following individuals and entities and placed them on the SDN List.
1. KHANANI, Obaid Altaf (a.k.a. “AHMED, Obaid”), Apt 411 and 412, Juma Al Majid Bldg, Tower B, Al Nadha, Sharjah, United Arab Emirates; 107 Kings Road, Old Trafford, Manchester, Lancashire M16 9WY, United Kingdom; DOB 20 Jul 1987; POB Karachi, Pakistan; Passport BF4108623 (Pakistan) (individual) [TCO] (Linked To: KAY ZONE GENERAL TRADING LLC; Linked To: LANDTEK DEVELOPERS; Linked To: ALTAF KHANANI MONEY LAUNDERING ORGANIZATION; Linked To: AL ZAROONI EXCHANGE).
2. KHANANI, Hozaifa Javed (a.k.a. KHANANI, Huzaifa Jawed), House No D-85 Block 5, Clifton, Karachi, Pakistan; DOB 04 May 1987; Passport AF6899813 (Pakistan); National ID No. 4220197869815 (Pakistan) (individual) [TCO] (Linked To: KAY ZONE BUILDERS & DEVELOPERS; Linked To: UNICO TEXTILES; Linked To: ALTAF KHANANI MONEY LAUNDERING ORGANIZATION).
3. KHANANI, Muhammad Javed (a.k.a. KHANANI, Javaid; a.k.a. KHANANI, Javed; a.k.a. KHANANI, Javed Muhammad; a.k.a. KHANANI, Javeed), D-85 Block, Clifton, Karachi, Pakistan; Third Floor, Penthouse, Osma Terrace PECHS, Flat No 9/1, Block 2, Karachi, Pakistan; DOB 02 May 1961; citizen Pakistan; Passport DW4100432 (individual) [TCO] (Linked To: ALTAF KHANANI MONEY LAUNDERING ORGANIZATION).
4. POLANI, Atif (a.k.a. POLANI, Atif Abdul Aziz), D-31, Block-5, Clifton, Karachi, Pakistan; Dubai, United Arab Emirates; DOB 09 Jan 1978; Passport KE155664 (Pakistan); National ID No. 42301-4685763-5 (Pakistan) (individual) [TCO] (Linked To: ALTAF KHANANI MONEY LAUNDERING ORGANIZATION; Linked To: AL ZAROONI EXCHANGE).
1. KAY ZONE BUILDERS & DEVELOPERS (a.k.a. KAY ZONE BUILDERS AND DEVELOPERS), House #D-85, Block-5, Clifton, Karachi, Pakistan [TCO] (Linked To: KHANANI, Hozaifa Javed).
2. KAY ZONE GENERAL TRADING LLC, Office No. 412, Abdul Ahmed Al Zarouni Building, Deira, Dubai, United Arab Emirates; Registration ID 1046349 (United Arab Emirates); Dubai Chamber of Commerce Membership No. 175229; Trade License No. 626883 (United Arab Emirates) [TCO] (Linked To: KHANANI, Obaid Altaf).
3. LANDTEK DEVELOPERS, 5th Floor, Emerald Tower, G-19, Block-5, Clifton Road, Clifton, Karachi, Pakistan [TCO] (Linked To: KHANANI, Obaid Altaf).
4. UNICO TEXTILES, S.f. Unit #5, Hub River Road, S.I.T.E., Karachi, Pakistan [TCO] (Linked To: KHANANI, Hozaifa Javed).
5. AYDAH TRADING LLC (a.k.a. AYDAH TRADING AL AIN), P.O. Box 89103, Dubai, United Arab Emirates; P.O. Box 16524, Al Ain, Abu Dhabi, United Arab Emirates; Rm. 413, Jumma Bldg., Naif Rd., Deira, Dubai, United Arab Emirates [TCO] (Linked To: ALTAF KHANANI MONEY LAUNDERING ORGANIZATION).
6. JETLINK TEXTILES TRADING, No. 1004 Dummy Deyar Developer Bldg., P.O. Box 203253, Dubai, United Arab Emirates; P.O. Box 41792, Office No. 1004 Deyaar Developer Building, Business Bay, Dubai, United Arab Emirates; P.O. Box 282158, Dubai, United Arab Emirates; P.O. Box 46584, Sheikh Zayed Road, Dubai, United Arab Emirates; Commercial Registry Number 1144902; License 717783 [TCO] (Linked To: ALTAF KHANANI MONEY LAUNDERING ORGANIZATION).
7. MAZAKA GENERAL TRADING L.L.C., 108 Al Safa Tower, Sheikh Zayed Road, P.O. Box 181176, Dubai, United Arab Emirates; PO BOX 181176, Al Souk Al Kabir Rd, Ben Daghen Building 6, Dubai, United Arab Emirates; 108 Al Safa Tower Trade Center, First Land No 23, PO Box No 181176, Dubai, United Arab Emirates; Govt. Of Dubai Real Estate Bldg. Bur, Main, P.O. Box 3162, Dubai, United Arab Emirates; Web site
8. SEVEN SEA GOLDEN GENERAL TRADING LLC, Al Qasimiya Street 25022, Sharjah, United Arab Emirates; Ofc. 413, Al Jumma Bldg., Naif Rd., Deira, Dubai, United Arab Emirates [TCO] (Linked To: ALTAF KHANANI MONEY LAUNDERING ORGANIZATION).
9. WADI AL AFRAH TRADING LLC, P.O. Box 40553, Dubai, United Arab Emirates; P.O. Box 39807, Dubai, United Arab Emirates; Flat No. 405 Rahim Al Badri Bldg., Naif Road, Deira, Dubai, United Arab Emirates; Registration ID 620850 (United Arab Emirates) [TCO] (Linked To: ALTAF KHANANI MONEY LAUNDERING ORGANIZATION).
Internal Revenue Service (IRS), Treasury.
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 IRS is soliciting comments concerning Revenue Procedure 2016-30, Pre-filing Agreement Program.
Written comments should be received on or before December 13, 2016 to be assured of consideration.
Direct all written comments to Tuawana Pinkston, Internal Revenue Service, Room 6527, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to R. Joseph Durbala at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 317-5746, or through the internet at
This revenue procedure provides the framework within which a taxpayer and the Service may work together in a cooperative environment to resolve, after examination, issues accepted into the program. If the taxpayer and the Service are able to resolve the examined issues before the tax returns that they affect are filed, this revenue procedure authorizes the taxpayer and the Service to memorialize their agreement by executing an LB&I Pre-Filing Agreement (PFA).
The following paragraph applies to all the collections of information covered by this notice.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Under the authority granted to me as Chief Counsel of the Internal Revenue Service by the General Counsel of the Department of the Treasury by General Counsel Directive 15, pursuant to the Civil Service Reform Act, I have appointed the following persons to the Legal Division Performance Review Board, Internal Revenue Service Panel:
This publication is required by 5 U.S.C. 4314(c)(4).
Under the authority granted to me as Chief Counsel of the Internal Revenue Service by the General Counsel of the Department of the Treasury by General Counsel Directive 15, pursuant to the Civil Service Reform Act, I have appointed the following persons to the Legal Division Performance Review Board, Internal Revenue Service Panel:
This publication is required by 5 U.S.C. 4314(c)(4).
Commodity Futures Trading Commission.
Final rule.
The Commodity Futures Trading Commission (Commission or CFTC) is adopting an amendment to the Commission's regulations to expand the existing clearing requirement for interest rate swaps pursuant to the pertinent section of the Commodity Exchange Act (CEA). The amended regulation requires that interest rate swaps denominated in certain currencies and having certain termination dates, as described herein, be submitted for clearing to a derivatives clearing organization (DCO) that is registered under the CEA (registered DCO) or a DCO that has been exempted from registration under the CEA (exempt DCO).
The amended rule is effective December 13, 2016. Specific compliance dates are discussed in the Supplementary Information.
Sarah E. Josephson, Deputy Director, Division of Clearing and Risk (DCR), at 202-418-5684 or
On June 16, 2016, the Commission published a notice of proposed rulemaking (NPRM) to establish an expanded interest rate swap clearing requirement under section 2(h)(1)(A) of the CEA and Commission regulation 50.4(a).
For the reasons discussed below, this final rulemaking expands the existing interest rate swap clearing requirement by requiring the clearing of all of the swaps covered by the NPRM, except for AUD-denominated FRAs.
The Commission's first clearing requirement determination issued in 2012 applied to four classes of interest rate swaps and two classes of credit default swaps.
Accordingly, the Commission is issuing this final rulemaking to adopt an amendment to § 50.4(a) such that the following products are subject to the clearing requirement as set forth in regulation 50.4: (1) Fixed-to-floating swaps denominated in the nine additional currencies; (2) basis swaps denominated in AUD; (3) FRAs denominated in NOK, PLN, and SEK; (4) OIS denominated in AUD and CAD; and (5) OIS denominated in USD, EUR, and GBP that have termination dates of up to three years.
The following is an updated summary of actions taken by other jurisdictions towards implementing clearing mandates for interest rate swaps. The Commission believes that it is important to harmonize its swap clearing requirement with clearing mandates promulgated in other jurisdictions. For example, if a non-U.S. jurisdiction issued a clearing requirement and a swap dealer (SD) located in the U.S. were not subject to that non-U.S. clearing requirement, then a swap market participant located in the non-U.S. jurisdiction might be able to avoid the non-U.S. clearing requirement by entering into a swap with the SD located in the U.S.
As the Commission reviewed the regulation 39.5(b) submissions from DCOs, it considered whether those products offered for clearing at DCOs were subject, or were likely to be subject, to a clearing requirement in another jurisdiction. For those products that were the subject of a clearing requirement rule or proposal outside of the U.S., the Commission reviewed the specifications of the products and the processes used by non-U.S. regulators to impose a clearing mandate. In addition, the Commission reviewed data produced and made available to the public in connection with any rule proposals or final rules implementing a clearing requirement in non-U.S. jurisdictions. Finally, the Commission considered comments submitted in response to clearing mandate rule proposals in non-U.S. jurisdictions and any subsequent changes that regulators made to final rules implementing a clearing mandate. In this manner, the Commission was informed by its review of non-U.S. jurisdictions' clearing mandates and considered those mandates in preparing this determination.
Consequently, the scope of the swaps included in this final rulemaking reflects the Commission's desire to harmonize with our counterparts abroad and is informed by the work of those regulators, as described below. In addition, the product specifications of the swaps included in this clearing requirement determination are intended to be consistent with those referenced in clearing mandates published by the Commission's counterparts abroad.
The Australian Securities and Investments Commission (ASIC) has published regulations that require certain Australian and non-Australian entities
As a result of this clearing requirement determination, the classes of swaps required to be cleared under Commission regulation 50.4(a) are expanded to include AUD-denominated fixed-to-floating interest rate swaps, basis swaps, and OIS swaps that are consistent with the AUD-denominated swaps that are, or will be, required to be cleared by ASIC.
In 2015, Canada's provincial securities regulators
As a result of this clearing requirement determination, the classes of swaps required to be cleared under Commission regulation 50.4(a) are expanded to include CAD-denominated fixed-to-floating interest rate swaps and OIS swaps that are consistent with the CAD-denominated swaps that will be required to be cleared by the Canadian provincial securities regulators.
On August 6, 2015, the European Commission adopted an initial interest rate swap clearing obligation for certain financial counterparties and non-financial counterparties
On June 10, 2016, the European Commission adopted an expansion of the European Union clearing obligation for certain financial counterparties and non-financial counterparties
As a result of this clearing requirement determination, the classes of swaps required to be cleared under Commission regulation 50.4(a) are expanded to include (1) EUR-, USD-, and GBP-denominated OIS with termination dates ranging from two years to three years; (2) NOK-, PLN-, and SEK-denominated fixed-to-floating interest rate swaps; and (3) NOK-, PLN-, and SEK-denominated FRAs that are, or will soon be, required to be cleared by the European Commission.
On February 5, 2016, the Hong Kong Securities and Futures Commission and the Hong Kong Monetary Authority jointly published conclusions to a consultation paper proposing mandatory clearing for certain interest rate swaps.
As a result of this clearing requirement determination, the classes of swaps required to be cleared under Commission regulation 50.4(a) are expanded to include HKD-denominated fixed-to-floating interest rate swaps that will be required to be cleared by the Hong Kong Securities and Futures Commission and the Hong Kong Monetary Authority.
In 2015, Banco de México, the Mexican central bank, published a clearing mandate to require that certain Mexican financial institutions
As a result of this clearing requirement determination, the classes of swaps required to be cleared under Commission regulation 50.4(a) are expanded to include MXN-denominated fixed-to-floating interest rate swaps that are required to be cleared by the Banco de México.
In 2015, the Monetary Authority of Singapore (MAS) published proposed regulations that would require financial institutions
As a result of this clearing requirement determination, the classes of swaps required to be cleared under Commission regulation 50.4(a) are expanded to include SGD-denominated fixed-to-floating interest rate swaps that are likely to be the subject of final regulatory action by MAS establishing a clearing requirement, which will commence in 2017.
In 2015, the Swiss parliament adopted legislation providing a framework for a swap clearing requirement. A clearing requirement for certain financial counterparties and non-financial counterparties
As a result of this clearing requirement determination, the classes of swaps required to be cleared under Commission regulation 50.4(a) are expanded to include CHF-denominated fixed-to-floating interest rate swaps that may be subject to a clearing requirement in 2017.
CME and LCH provided the Commission with regulation 39.5(b) submissions relating to: Fixed-to-floating interest rate swaps denominated in the nine additional currencies; AUD-denominated basis swaps; and USD-, EUR-, and GBP-denominated OIS with termination dates of up to 30 years. CME and LCH provided § 39.5(b) submissions pertaining to the FRAs and OIS listed in Table 1, below. CME and
Table 1 summarizes the relevant interest rate swaps submitted by CME, Eurex, LCH, and SGX.
The Commission notes that these interest rate swaps are all single currency swaps without optionality, as defined by the applicable DCO.
The submissions from CME, Eurex, LCH, and SGX provided the information required by regulation 39.5(b)(3)(i)-(viii), which, along with other information, has assisted the Commission in making a quantitative and qualitative assessment that these swaps should be subject to a clearing requirement determination.
Additionally, the Commission considered industry data
This final rulemaking also reflects consultation with the staff of the Securities and Exchange Commission, U.S. prudential regulators, and international regulatory authorities. This consultation occurred prior to the approval of the NPRM, as well as prior to the approval of this final rulemaking by the Commission. The Commission
Finally, the Commission considered the ten public comments received in response to the NPRM.
Section 5b(c)(2) of the CEA sets forth 18 core principles with which DCOs must comply to be registered and to maintain registration. The core principles address numerous issues, including financial resources, participant and product eligibility, risk management, settlement procedures, default management, system safeguards, reporting, recordkeeping, public information, and legal risk.
Each of the DCOs that submitted the interest rate swaps subject to this rulemaking is registered with the Commission. The DCOs' regulation 39.5(b) submissions discussed herein identify swaps that the DCOs are currently clearing and are eligible to clear under regulation 39.5(a). Consequently, the Commission has been reviewing and monitoring compliance by the DCOs with the core principles for clearing the submitted swaps.
The primary objective of the Commission's supervisory program is to ensure compliance with applicable provisions of the CEA and implementing regulations, and, in particular, the core principles applicable to DCOs. A primary concern of the program is to monitor and mitigate potential risks that can arise in derivatives clearing activities for the DCO, its members, and entities using the DCO's services. Accordingly, the Commission's supervisory program takes a risk-based approach, and pays particular attention to the risks posed by stressed market conditions, and major market events, as well as market participants' reactions to such conditions and events.
In addition to the core principles set forth in section 5b(c)(2) of the CEA, section 5c(c) governs the procedures for review and approval of new products, new rules, and rule amendments submitted to the Commission by DCOs. Part 39 of the Commission's regulations implements sections 5b and 5c(c) of the CEA by establishing specific requirements for compliance with the core principles, as well as procedures for registration, for implementing DCO rules, and for clearing new products. Part 40 of the Commission's regulations sets forth additional provisions applicable to a DCO's submission of rule amendments and new products to the Commission.
The Commission has means to enforce compliance, including the Commission's ability to sue the DCO in federal court for civil monetary penalties,
Section 5b of the CEA requires a DCO to register with the Commission. In order to do so, an organization must submit an application demonstrating that it complies with the core principles. During the review period, the Commission generally conducts an on-site review of the prospective DCO's facilities, asks a series of questions, and reviews all documentation received. The Commission may ask the applicant to make changes to its rules to comply with the CEA and the Commission's regulations.
After registration, the Commission conducts examinations of DCOs to determine whether each DCO is in compliance with the CEA and Commission regulations. Each examination begins with a planning phase where staff reviews information the Commission has to determine whether the information raises specific issues and to develop an examination plan. The examination team participates in a series of meetings with the DCO at its facility. Commission staff also communicates with relevant DCO staff, including senior management, and reviews documentation. Data produced by the DCO is independently tested. Finally, when relevant, walk-through testing is conducted for key DCO processes.
Commission staff also reviews DCOs that are systemically important (SIDCOs) at least once a year. Of the DCOs discussed in this rulemaking, only CME has been determined to be a SIDCO.
Commission risk surveillance staff monitors the risks posed to and by DCOs, clearing members, and market participants, including market risk, liquidity risk, credit risk, and concentration risk. The analysis includes review of daily, large trader reporting data obtained from market participants, clearing members, and DCOs, which is available at the trader, clearing member, and DCO levels. Relevant margin and financial resources information also is included within the analysis.
Commission staff regularly conducts back testing to review margin coverage at the product level and follows up with the relevant DCO regarding any exceptional results. Independent stress testing of portfolios is conducted on a daily, weekly, and ad hoc basis. The independent stress tests may lead to individual trader reviews and/or futures commission merchant (FCM) risk reviews to gain a deeper understanding of a trading strategy, risk philosophy, risk controls and mitigants, and financial resources at the trader and/or FCM level. The traders and FCMs that have a higher risk profile are then reviewed during the Commission's on-site review of a DCO's risk management procedures.
Given the importance of DCOs within the financial system and the heightened scrutiny as more transactions are moved into central clearing, the goal of the Commission risk surveillance staff is: (1) To identify positions in cleared products subject to the Commission's jurisdiction that pose significant financial risk; and (2) to confirm that these risks are being appropriately managed. Commission risk surveillance staff undertakes these tasks at the trader level, the clearing member level, and the DCO level. That is, staff identifies both traders that pose risks to clearing members and clearing members that pose risks to the DCO. Staff then evaluates the financial resources and risk management practices of traders, clearing members, and DCOs in relation to those risks. Commission risk surveillance staff routinely monitors conditions in assigned markets throughout the day. Because of the work done in identifying accounts of interest, analysts are able to focus their efforts on those traders whose positions warrant heightened scrutiny under current market conditions.
To gain insight into how markets operate during stressed market conditions, an essential technique in
The general standard in designing stress tests is to use “extreme but plausible” market moves. After identifying accounts at risk and estimating the size of the risk, the third step is to compare that risk to the assets available to cover it. Because stress testing, by definition, involves extreme moves, hypothetical results will exceed initial margin requirements on a product basis,
Each DCO maintains a financial resources package that protects the DCO against clearing member defaults. If a clearing member defaults on its obligations, the first layer of protection against a DCO default is the defaulting clearing member's initial margin, as well as the defaulting clearing member's guaranty fund contribution. The second layer of protection against a DCO default, after the defaulting clearing member's initial margin and guaranty fund contribution, is the DCO's capital contribution. The third layer of protection against a DCO default is the DCO's mutualized resources, which often include guaranty fund contributions of non-defaulting clearing members and assessments of non-defaulting clearing members. These layers of protection comprise the DCO's financial resources package.
Commission risk surveillance staff compares the level of risk posed by clearing members to a DCO's financial resources package on an ongoing basis. Pursuant to Commission regulation 39.11(a), a DCO must have sufficient financial resources to cover a default by the clearing member posing the largest risk to the DCO. Pursuant to Commission regulation 39.33(a), a SIDCO
Commission risk surveillance staff frequently discusses the risks of particular accounts or positions with relevant DCOs. For example, as a follow-up to a trader review, Commission risk surveillance staff might compare its stress test results with those of the DCO. As also noted above, in the case of FCMs, there have been instances where, as a result of Commission risk surveillance staff comments or inquiries, DCOs have taken action to revise their stress tests and/or financial resources package to align with Commission risk surveillance staff's recommendations.
The Commission received 10 comment letters during the 30-day public comment period following publication of the NPRM.
Seven commenters (Better Markets, Citadel, CME Group, ISDA, LCH Group, MFA, and SIFMA AMG) voiced support for the proposed expansion of the clearing requirement and agreed with the Commission's analysis that the expanded clearing requirement would enhance financial stability by reducing systemic risk, improving market integrity, or increasing transparency in the swap market. Two commenters, Scotiabank and ASX, provided clarifying comments with respect to product specifications, but did not express explicit support for the proposal overall. One commenter, JBA, requested that the Commission reconsider its proposal to expand the interest rate swaps clearing requirement in light of the increasing number of clearing brokers withdrawing from the swaps clearing business due to rising costs.
One commenter, Scotiabank, discussed the specifications of the MXN-denominated fixed-to-floating interest rate swaps included in the Commission's proposed expanded fixed-to-floating interest rate swap class.
Most commenters responded to the NPRM's request for comment concerning the advantages and disadvantages of a simultaneous effective date versus a series of compliance dates that would coordinate implementation with clearing requirements issued by non-U.S. jurisdictions.
Six commenters, CME Group, Citadel, ISDA, LCH Group, MFA, and SIFMA AMG all supported the Commission's goal of harmonizing its clearing requirement with those of non-U.S. jurisdictions. Citadel commented that such harmonization would lead to the benefit of eliminating regulatory arbitrage. LCH Group stated that such harmonization would promote certainty for market participants. SIFMA AMG commented that such harmonization would improve the functioning of swaps markets and reduce operational
One commenter, Citadel, complimented the Commission for assessing the extent of outstanding notional exposures of the swaps covered by the NPRM using multiple sources of data.
Two commenters, JBA and Scotiabank, requested clarification as to whether the expanded clearing requirement would only apply to new swaps entered into after the applicable compliance date and whether previously executed swaps would be required to be “backloaded” to clearing.
One commenter, JBA, raised concerns about market participants needing to establish a clearing relationship with a new DCO in order to comply with the expanded clearing requirement.
Three comment letters discussed the possibility of a trade execution requirement applying to some or all of the interest rate swaps subject to this rulemaking.
Interest rate swaps generally are agreements wherein counterparties agree to exchange payments based on a series of cash flows over a specified period of time, typically calculated using two different rates, multiplied by a notional amount. As of June 2015, according to an estimate by BIS, there was approximately $435 trillion in outstanding notional of interest rate swaps, which represents approximately 79% of the total outstanding notional of all derivatives.
Section 2(h)(2)(A)(i) of the CEA provides that the Commission shall review each swap, or any group, category, type, or class of swaps to make a determination as to whether the swap or group, category, type, or class of swaps should be required to be cleared. This final rulemaking adds to the four classes of interest rate swaps that the Commission defined in the First Clearing Requirement Determination:
1. Fixed-to-floating swaps: Swaps in which the payment or payments owed for one leg of the swap is calculated using a fixed rate and the payment or payments owed for the other leg are calculated using a floating rate.
2. Basis swaps: Swaps for which the payments for both legs are calculated using floating rates.
3. Forward rate agreements: Swaps in which payments are exchanged on a pre-determined date for a single specified period and one leg of the swap is calculated using a fixed rate and the other leg is calculated using a floating rate that is set on a pre-determined date.
4. Overnight index swaps: Swaps for which one leg of the swap is calculated using a fixed rate and the other leg is calculated using a floating rate based on a daily overnight rate.
Interest rate swaps within the classes described above are currently required to be cleared pursuant to regulation 50.4(a) if they meet certain specifications: (i) Currency in which notional and payment amounts of a swap are specified; (ii) floating rate index referenced in the swap; and (iii) stated termination date of the swap. The Commission also included the following three “negative” specifications:
Section 2(h)(2)(D)(i) of the CEA requires the Commission to determine whether a clearing requirement determination would be consistent with the core principles for registered DCOs set forth in section 5b(c)(2) of the CEA and implemented in part 39 of the Commission's regulations.
For the purposes of reviewing whether the regulation 39.5(b) submissions are consistent with the DCO core principles, the Commission has relied on both the information received in the regulation 39.5(b) submissions and, as discussed above, its ongoing review and risk surveillance programs.
The Commission concludes that CME, Eurex, LCH, and SGX are capable of maintaining compliance with the DCO core principles following the adoption of this clearing requirement determination. The Commission has not found any evidence to conclude that subjecting any of the interest rates swaps identified herein to a clearing requirement would adversely affect compliance by CME, Eurex, LCH, or SGX with the DCO core principles. In response to the NPRM, LCH Group commented on this topic, stating that it does not believe that the clearing requirement would adversely impact its ability to comply with the DCO core principles. Accordingly, the Commission believes that each of the regulation 39.5(b) submissions discussed herein is consistent with section 5b(c)(2) of the CEA.
Section 2(h)(2)(D)(ii)(I)-(V) of the CEA identifies five factors that the Commission must “take into account” in making a clearing requirement determination.
(1) The existence of significant outstanding notional exposures, trading liquidity, and adequate pricing data;
(2) The availability of rule framework, capacity, operational expertise and resources, and credit support infrastructure to clear the contract on terms that are consistent with the material terms and trading conventions on which the contract is then traded;
(3) The effect on the mitigation of systemic risk, taking into account the size of the market for such contract and the resources of the DCO available to clear the contract;
(4) The effect on competition, including appropriate fees and charges applied to clearing; and
(5) The existence of reasonable legal certainty in the event of the insolvency of the relevant DCO or one or more of its clearing members with regard to the treatment of customer and swap counterparty positions, funds, and property.
As it reviewed the five statutory factors for this clearing requirement, the Commission considered the effect a new clearing mandate will have on a DCO's ability to withstand stressed market conditions. The post-financial crisis reforms that have increased the use of central clearing also have increased the importance of ensuring that central counterparties are resilient, particularly in times of market stress. The Commission has been working with other domestic and international regulators to make sure that adequate measures are taken to address the potential financial stability risks posed by central counterparties.
The first of the five factors requires the Commission to consider “the existence of significant outstanding notional exposures, trading liquidity, and adequate pricing data” related to “a submission made [by a DCO].”
In assessing the extent of outstanding notional exposures and trading liquidity for a particular swap, the Commission reviews various data series to ascertain whether there is an active market for the swap, including whether the swap is traded on a regular basis as reflected by trade count and whether there is a measurable amount of notional exposures, such that a DCO can adequately risk manage the swap. In particular, the Commission reviewed the aggregate notional exposure and the trade count data from a number of sources for each swap subject to this determination. While there is no defined standard for an active market,
The Commission notes the market for any swap is global. Even if the bulk of the activity in a particular swap occurs between counterparties located in a single jurisdiction, Table 2 demonstrates that there is significant participation by U.S. persons in each of the swaps covered by this determination.
Table 3.1 demonstrates the outstanding notional amounts of fixed-to-floating interest rate swaps, denominated in each of the nine additional currencies except for MXN, cleared at LCH as of July 17, 2015.
Table 3.2 describes
Table 4.1 demonstrates
Table 4.2 describes the aggregate notional values and trade counts of fixed-to-floating interest rate swaps denominated in these currencies that were cleared at CME during
As of July 17, 2015, the outstanding notional amount of SGD-denominated fixed-to-floating interest rate swaps cleared at SGX was $58.5 billion.
As another data source, the Commission looked to BIS data. BIS' 2013 triennial central bank survey for interest rate swaps describes the daily average notional values of interest rate swaps, including fixed-to-floating interest rate swaps, on a worldwide basis, denominated in each of the nine additional currencies.
More recently, BIS
On a daily basis, using data collected from DDR, ISDA's “SwapsInfo” report publishes the notional value and trade counts of fixed-to-floating interest rate swaps denominated in four of the nine additional currencies.
The Commission
In summary, the
The First Clearing Requirement Determination required the clearing of certain USD-, EUR-, GBP-, and JPY-denominated basis swaps. As part of this clearing requirement determination, the Commission is expanding the basis swap class to include AUD-denominated basis swaps, as proposed.
According to part 43 Data, 366 new AUD-denominated basis swaps were executed during the three-month period from April 1 to June 30, 2015. The aggregate notional amount of these swaps was $32,559,762,900.
While the data considered above comes from limited periods of time that do not explicitly include periods of market stress, the Commission concludes that the data demonstrates sufficient regular trading activity and outstanding notional exposures in AUD-denominated basis swaps to provide the liquidity necessary for DCOs to successfully risk manage these products and to support the adoption of a clearing requirement, as proposed. Accordingly, the Commission concludes that there is sufficient regular trading activity and outstanding notional exposures for AUD-denominated basis swaps subject to this rulemaking.
The First Clearing Requirement Determination required the clearing of certain USD-, EUR-, GBP-, and JPY-denominated FRAs. As part of the clearing requirement determination issued today, the Commission has decided to amend the FRA class to include only the NOK-, PLN-, and SEK-denominated FRAs proposed.
At this time, the Commission has decided not to include AUD-denominated FRAs as part of its expanded clearing requirement. This decision is based on several factors. First, the Australian authorities have postponed required clearing of AUD-denominated FRAs until July 2018.
Table 8 presents aggregate notional amounts and trade counts of NOK-, PLN-, and SEK-denominated FRAs executed during the second quarter of 2015, collected by DDR.
Table 9.1
Table 9.2 presents the aggregate notional values and trade counts of NOK-, PLN-, and SEK-denominated FRAs cleared at LCH during the second quarter of 2015.
Table 10.1 presents the outstanding notional amounts of NOK-, PLN-, and SEK-denominated FRAs cleared at CME as of July 17, 2015.
Table 10.2 presents the aggregate notional amounts and trade counts of NOK-, PLN-, and SEK-denominated FRAs cleared at CME during the second quarter of 2015.
The Commission
The First Clearing Requirement Determination required the clearing of certain USD-, EUR- and GBP-denominated OIS with a stated termination date range of seven days to two years. As part of this clearing requirement determination, the Commission is amending the maximum termination date to three years for USD-, EUR- and GBP-denominated OIS that have been required to be cleared pursuant to the First Clearing Requirement Determination. This will make the Commission's OIS clearing requirement consistent with that in effect in the European Union.
Table 11 presents aggregate notional values and trade counts of USD-, EUR-, and GBP-denominated OIS with terms of two to three years executed during the second quarter of 2015, collected by DDR.
Tables
As part
Table 14 presents aggregate notional amounts and trade counts of AUD- and CAD-denominated OIS executed during the second quarter of 2015 collected by DDR.
Tables 15.1
The fact that Australian and Canadian regulators have included AUD- and CAD-denominated OIS, respectively, in their clearing requirements demonstrates that they believe that these swaps represent an important part of the derivatives portfolios of Australian and Canadian banks. The part 43 Data cited in Table 14 demonstrates that there is also meaningful participation by U.S. swap market participants in these swaps. For example, U.S. SDs and their affiliated entities play an important role in the global swaps market, including in Australia and Canada. The Commission therefore believes that it is prudent for its clearing requirement to be consistent with those issued by other jurisdictions, even with respect to swaps that are relatively less frequently traded than other swaps.
While the Commission recognizes that the data considered above comes from limited periods of time that do not explicitly include periods of market stress, the Commission concludes that the data demonstrates sufficient regular trading activity and outstanding notional exposures in USD-, GBP-, and EUR-denominated OIS with a termination date range of two to three years, as well as AUD- and CAD-denominated OIS, to provide the necessary liquidity for DCOs to successfully risk manage these products and to support the adoption of a clearing requirement. Accordingly, the Commission concludes that there is sufficient regular trading activity and outstanding notional exposures for all OIS subject to this rulemaking.
The Commission regularly reviews pricing data on the interest rate swaps subject to this rulemaking and has found that these swaps are capable of being priced off of deep and liquid markets. Commission staff receives and reviews margin model information from CME, Eurex, LCH, and SGX that addresses how such DCOs would follow particular procedures to ensure that market liquidity exists in order to exit a position in a stressed market, including the products subject to this determination. In particular, Commission staff analyzes the level of liquidity in the specific product markets and assesses the time required to determine a price. Based on this information, the Commission staff has no reason to believe that there is, or will be, difficulty pricing the products subject to this determination in a stressed environment.
Because of the stability of access to pricing data from these markets, the pricing data for non-exotic interest rate swaps that are currently being cleared is generally viewed as reliable. In addition, CME, Eurex, LCH, and SGX provided information that supports the Commission's conclusion that there is adequate pricing data to warrant a clearing requirement for the swaps subject to this rulemaking. LCH and CME believe there is adequate pricing data for risk and default management. CME stated that its interest rate swap valuations are fully transparent and rely on pricing inputs obtained from wire service feeds. In its § 39.5(b) submission, SGX asserted that the valuation rate sources it uses, and the manner in which it determines mark-to-market prices, are in alignment with industry practices. CME, Eurex, LCH, and SGX obtain daily prices from third-party data providers, clearing members, and/or major banks.
As discussed above, the Commission reviews margin models and related pricing data submitted by CME, Eurex, LCH, and SGX. One source of information that they use to determine adequate pricing data is a regular survey of swap traders that asks the traders to estimate what it would cost to liquidate positions of different sizes in different currencies. The information obtained during these market participant surveys is incorporated into each of CME, Eurex, LCH, and SGX's internal margin models so that each is confident that it will be able to withstand stressed market conditions. Establishing accurate pricing data is one component of each of CME, Eurex, LCH, and SGX's ability to risk manage their interest rate swaps offered for clearing. The Commission believes that the methods used by these DCOs provide information on pricing that is accurate and demonstrates the ability to price the products subject to this determination successfully. Accordingly, the Commission concludes that there is adequate pricing data to support an extension of the clearing requirement to the swaps subject to this rulemaking.
In response to the NPRM, three commenters, Better Markets, Citadel, and CME Group agreed with the Commission's analysis of the first factor under section 2(h)(2)(D)(ii). That is, these commenters agreed that there is sufficient outstanding notional exposures in all of the swaps covered by the NPRM for DCOs successfully to risk manage such swaps and that this supports a clearing requirement determination. In its comment letter, Citadel complimented the Commission for assessing the extent of outstanding notional exposures using multiple sources of data. Citadel noted further that the various sources of data the Commission referenced in discussing the extent of outstanding notional exposures demonstrate the variety of sources a DCO may rely on to access price data for risk and default management purposes. In addition, Better Markets, Citadel, and MFA commented that there is sufficient trading activity and liquidity in the swaps subject to this rulemaking to support a clearing requirement. MFA highlighted the fact that, as noted in the NPRM, a significant percentage of the market already clears the swaps voluntarily at Commission-registered DCOs. Citadel commented that the clearing requirement would enhance liquidity in cleared instruments to the benefit of investors. Similarly, SIFMA AMG commented that clearing improves market liquidity.
With respect to pricing data, in their comment letters, CME Group and LCH Group agreed with the Commission that there is sufficient pricing data available for the swaps subject to this rulemaking such that CME Group and LCH Group can adequately manage the risks that would arise from the default of a clearing member. The Commission received no other comments related to the level of outstanding notional exposures and trading liquidity or adequacy of pricing data for the swaps subject to this rulemaking.
For the reasons described above and in light of the comments received, the Commission reaffirms its conclusion stated in the NPRM that there are sufficient outstanding notional exposures and trading liquidity, as well as adequate pricing data, to expand the clearing requirement to include the swaps subject to this rulemaking, which are referenced in revised regulation 50.4(a).
Section 2(h)(2)(D)(ii)(II) of the CEA requires the Commission to take into account the availability of rule
The Commission subjects CME, Eurex, LCH, and SGX to ongoing review and risk surveillance programs to ensure compliance with the core principles for the submitted swaps.
After registration, the Commission conducts examinations of DCOs to determine whether the DCO is in compliance with the CEA and Commission regulations. Moreover, Commission risk surveillance staff monitors the risks posed to and by the DCO, in ways that include regularly conducting back testing to review margin coverage at the product level and following up with the DCO and its clearing members regarding any exceptional results.
CME, Eurex, LCH, and SGX have procedures pursuant to which they regularly review their clearing of the interest rate swaps subject to this rulemaking in order to confirm, or make adjustments to, margins and other risk management tools. When reviewing CME, Eurex, LCH, and SGX's risk management tools, the Commission considers whether the DCO is able to manage risk during stressed market conditions to be one of the most significant considerations.
CME, Eurex, LCH, and SGX have developed detailed risk management practices, including a description of the risk factors considered when establishing margin levels such as historical volatility, intraday volatility, seasonal volatility, liquidity, open interest, market concentration, and potential moves to default, among other risks.
CME, Eurex, LCH, and SGX design stress tests to simulate “extreme but plausible” market conditions based on historical analysis of product movements and/or based on hypothetical forward-looking scenarios that are created with the assistance of market experts and participants. Commission staff monitors and oversees the use and development of these stress tests. CME, Eurex, LCH, and SGX conduct stress tests daily. In addition, CME, Eurex, LCH, and SGX conduct reverse stress testing to ensure that their default funds are sized appropriately. Reverse stress testing uses plausible market movements that could deplete guaranty funds and cause large losses for top clearing members.
CME, Eurex, LCH, and SGX conduct back testing on a daily basis to ensure that the margin models capture market movements for member portfolios. Back testing serves two purposes: It tests margin models to determine whether they are performing as intended and it checks whether the margin models produce margin coverage levels that meet the DCO's established standards. CME conducts daily back testing for each major asset class, and SGX performs daily back testing on a contract level to examine margin models in more detail. LCH may call additional margin from clearing members if back testing demonstrates margin erosion. The back testing process helps CME, Eurex, LCH, and SGX determine whether their clearing members satisfy the required margin coverage levels and liquidation time frame.
Before offering a new product for clearing, such as the interest rate swaps subject to this rulemaking, CME, Eurex, LCH, and SGX take stress tests and back testing results into account to determine whether the clearinghouse has sufficient financial resources to offer new clearing services. In addition, the Commission reviews margin models and default resources to ensure that the DCOs can risk manage their portfolio of products offered for clearing. The Commission believes that this combination of stress testing and back testing in anticipation of offering new products for clearing provides CME, Eurex, LCH, and SGX with greater certainty that new product offerings will be risk-managed appropriately. The process of stress testing and back testing also gives the DCOs practice incorporating the new product into their models.
In addition to the Commission's surveillance and oversight, CME, Eurex, LCH, and SGX continue to monitor and test their margin models over time so that they can operate effectively in stressed and non-stressed market environments. CME, Eurex, LCH, and SGX review and validate their margin models regularly and in the case of CME and SGX, no less than annually. To risk manage their margin coverage levels for interest rate swaps denominated in
Finally, aside from margin coverage requirements, CME, Eurex, LCH, and SGX can monitor and manage credit risk exposure by asset class, clearing member, account, or even by individual customers. They manage credit risk by establishing position and concentration limits based on product type or counterparty. The Commission recognizes that these limits reduce potential market risks so that DCOs are better able to withstand stressed market conditions. CME, Eurex, LCH, and SGX monitor exposure concentrations and may require additional margin deposits for clearing members with weak credit scores, with large or concentrated positions, with positions that are illiquid or exhibit correlation with the member itself, and/or where the member has particularly large exposures under stress scenarios. The ability to call for any additional margin, on top of collecting initial and variation margin, to meet the current DCO exposure is another tool that CME, Eurex, LCH, and SGX may use to protect against stressed market conditions.
In support of its ability to clear the products subject to this rulemaking, CME's § 39.5(b) submissions cite to its rulebook to demonstrate the availability of rule framework, capacity, operational expertise and resources, and credit support infrastructure to clear interest rate swap contracts on terms that are consistent with the material terms and trading conventions on which the contracts are then traded. LCH's submissions state that LCH has the capability and expertise not only to manage the risks inherent in the current book of interest rate swaps cleared, but also to manage the increased volume that a clearing requirement for additional currently clearable products could generate. SGX's submission states that SGD-denominated fixed-to-floating interest rate swaps are cleared under an established rule framework and operational infrastructure that has been accepted by SGX's clearing members. SGX asserted further that it has the appropriate risk management, operations, and technology capabilities in place to ensure that it is able to liquidate positions in these swaps in an orderly manner should a default occur. Similarly, Eurex's submission states that it clears interest rate swaps pursuant to its well-developed rule framework and support infrastructure.
Importantly, the Commission notes that CME, Eurex, LCH, and SGX each developed their interest rate swap clearing offerings in conjunction with market participants and in response to the specific needs of the marketplace. In this manner, CME's, Eurex's, LCH's, and SGX's clearing services are designed to be consistent with the material terms and trading conventions of a bilateral, uncleared market.
When assessing whether CME, Eurex, LCH, and SGX can clear the swaps subject to this rulemaking safely during times of market stress, the Commission reviewed the public disclosures published by CME, Eurex, LCH, and SGX. In addition, the Commission reviewed the risk management practices used by these DCOs, and the Commission has determined that the application of such practices to the products subject to this clearing requirement determination should ensure that the products can be cleared safely during times of market stress. Accordingly, the Commission concludes that at each of the four DCOs discussed above, there is an available rule framework, capacity, operations expertise and resources, and credit support infrastructure to clear the swaps subject to this rulemaking on terms that are consistent with the material terms and trading conventions on which they are now traded.
In response to the NPRM, Citadel agreed with the Commission's conclusion that the existing DCO rule frameworks and infrastructure are satisfactory for clearing the swaps subject to the determination. Citadel commented that the already significant amount of voluntary clearing of these swaps demonstrates the suitability of the DCOs' frameworks and infrastructures. LCH Group commented that its rule framework, capacity, operational expertise, resources, and credit support structure are adequate to clear the swaps covered by the rulemaking, including during times of market stress. Similarly, CME Group commented that it is capable of offering uninterrupted clearing services of these swaps, even during times of market stress. Finally, Better Markets commented that the second factor under section 2(h)(2)(D)(ii) is satisfied because registered DCOs are already clearing the swaps subject to the NPRM in compliance with the DCO core principles. Better Markets also urged the Commission strictly to surveil DCOs' risk management procedures.
The Commission received no other comments related to the existence of satisfactory DCO rule frameworks and infrastructure to support this expanded clearing requirement determination.
For the reasons described above and in light of the comments received, the Commission reaffirms its conclusion stated in the NPRM that there are available rule frameworks, capacity, operations expertise and resources, as well as credit support infrastructures consistent with material terms and current trading conventions, to expand the clearing requirement to include the swaps subject to this rulemaking, which are referenced in revised regulation 50.4(a).
Section 2(h)(2)(D)(ii)(III) of the CEA requires the Commission to take into account the effect of the clearing requirement on the mitigation of systemic risk, taking into account the size of the market for such contract and the resources of the DCO available to clear the contract. The Commission believes that the market for the swaps covered by this determination is significant and that mitigating counterparty risk through clearing likely will reduce systemic risk in that market generally. Data collected by SDRs demonstrates that Commission-registered SDs are counterparties to an overwhelming majority of swaps reported to the Commission. Because only SDs with a significant volume of swaps activity are required to register with the Commission,
In addition to managing counterparty credit risk, centrally clearing the swaps covered by this rulemaking through a DCO will reduce systemic risk through the following means: Providing counterparties with daily mark-to-market valuations and exchange of variation margin pursuant to a risk management framework; requiring posting of initial margin to cover potential future exposures in the event of a default; offering multilateral netting to substantially reduce the number and notional amount of outstanding bilateral positions; reducing swap counterparties' operational burden by consolidating collateral management and cash flows; eliminating the need for novations or tear-ups because clearing members may offset opposing positions; and increasing transparency.
The Commission recognizes that the new margin requirements for uncleared swaps for SDs and MSPs require some market participants to post and collect margin for those swaps not subject to the Commission's clearing requirement.
However, the Commission believes that central clearing, including required clearing such as that described herein, offers greater risk mitigation than bilateral margining for swaps that are sufficiently standardized and meet the Commission's other requirements for suitability. First, absent any applicable exception or exemption,
In their § 39.5(b) submissions, CME, Eurex, and LCH stated that subjecting interest rate swaps to central clearing helps mitigate systemic risk. According to LCH, if all clearable swaps were required to be cleared at a small number of central counterparties rather than being held bilaterally by a much larger group of swap counterparties, the robust risk management frameworks of clearinghouses, such as that operated by LCH, would serve to reduce operational and systemic risk in the interest rate swap market. CME stated that the 2008 financial crisis demonstrated the potential for systemic risk arising from the interconnectedness of over-the-counter (OTC) derivatives market participants and asserted that centralized clearing will reduce systemic risk.
While a clearing requirement removes a large portion of the interconnectedness of current OTC markets that leads to systemic risk, the Commission notes that central clearing, by its very nature, concentrates risk in a handful of entities. Similarly, SGX, in its § 39.5(b) submission, noted that the risk reducing and other benefits of central clearing must be weighed against the concentration of risk in a few clearinghouses. However, the Commission observes that central clearing was developed and designed to handle such concentration of risk. Moreover, as discussed at length above, the Commission's review and risk surveillance programs monitor and attempt to mitigate potential risks that can arise in derivatives clearing activities for the DCO, its members, and other entities using the DCO's services.
Part of a DCO's risk management framework includes procedures for responding in stressed circumstances, such as a clearing member's default on its obligations. As discussed below, each of CME, Eurex, LCH, and SGX has a procedure for closing out and/or transferring a defaulting clearing member's positions and collateral.
Each DCO has experience risk managing interest rate swaps, and the Commission has determined that each of CME, Eurex, LCH, and SGX has the necessary resources available to clear the swaps that are the subject of its submission. Accordingly, the Commission concludes that it has considered the effect of the expanded clearing requirement on the mitigation of systemic risk and found that mitigating counterparty risk through required central clearing likely will
Several comment letters agreed with the Commission's conclusion that the clearing requirement would reduce systemic risk. Citadel commented that it believes that clearing reduces systemic risk by promoting open, efficient, and transparent markets and by reducing interconnectedness. In its comment letter, Citadel agreed with the Commission that central clearing does more to mitigate systemic risk than bilateral margining requirements. Citadel noted that unlike bilateral margining requirements, clearing eliminates the complex web of interconnected bilateral counterparty credit exposures. Citadel also commented that it believes that market participants benefit from the risk and default management frameworks that clearinghouses provide, including margin collection, end-of-day pricing, multilateral netting and compression, and a guaranty fund.
SIFMA AMG commented that clearing promotes market integrity. Better Markets commented that increased clearing may reduce systemic risk because of a potential increase in the number of DCO-clearing members. LCH Group commented that its risk management framework is calibrated to the particular characteristics of the swaps covered by the NPRM. LCH Group commented further that it is capable of handling any increased risk that could result from the clearing requirement, including during stressed market conditions.
The Commission received no other comments related to the effect of the expanded clearing requirement on the mitigation of systemic risk.
For the reasons described above and in light of the comments received, the Commission reaffirms its conclusion, stated in the NPRM that CME, Eurex, LCH, and SGX would be able to manage the risks posed by clearing the additional swaps that will be required to be cleared by virtue of the expanded clearing requirement. In addition, the Commission believes that the required central clearing of the interest rate swaps subject to this rulemaking will serve to mitigate counterparty credit risk, and might increase the number of clearing members and market participants in these swaps, thereby potentially reducing systemic risk. Thus, the Commission has decided to expand the clearing requirement so that it includes the swaps subject to this rulemaking, which are referenced in revised regulation 50.4(a).
Section 2(h)(2)(D)(ii)(IV) of the CEA requires the Commission to take into account the effect on competition, including appropriate fees and charges applied to clearing. As discussed above, of particular concern to the Commission is whether this determination would harm competition by creating, enhancing, or entrenching market power in an affected product or service market, or facilitating the exercise of market power. Market power is viewed as the ability to raise prices, including clearing fees and charges, reduce output, diminish innovation, or otherwise harm customers as a result of diminished competitive constraints or incentives.
In the NPRM, the Commission identified one putative service market as potentially affected by this clearing requirement determination: A DCO service market encompassing those clearinghouses that currently clear, or could reasonably be expected to clear, the types of interest rate swaps subject to this rulemaking,
Any competitive import from this determination likely would stem from the fact that it removes the alternative of not clearing for interest rate swaps subject to this rulemaking. On the other hand, this clearing requirement determination does not change who may or may not compete to provide clearing services for the interest rate swaps subject to this rulemaking (as well as those not required to be cleared).
Removing the alternative of not clearing is not determinative of negative competitive impact. Other factors—including the availability of other substitutes within the market or potential for new entry into the market—may constrain market power. The Commission does not foresee that this determination constructs barriers that would deter or impede new entry into a clearing services market.
The Commission notes further, that while Eurex and SGX each clear only one of the interest rate swaps subject to this rulemaking, they are generally eligible to clear interest rate swaps under Commission regulation under § 39.5(a) and may decide to add to their interest rate swap offerings in light of this rulemaking.
Better Markets, Citadel, and MFA commented that the clearing requirement would have a positive effect on competition. According to both Citadel and Better Markets, central clearing of swaps generally increases the range of execution counterparties, increases liquidity and price competition, narrows bid-ask spreads, and improves access to best execution. Similarly, MFA commented that the clearing requirement would increase competition among potential trading counterparties and liquidity providers by reducing counterparty credit and operational risk and by allowing market participants to trade with a wider range of execution counterparties. Better Markets also commented that the clearing requirement could promote competition because it could remove barriers to entry to the market and suggested that the clearing requirement could enhance the ability of relatively small SDs and other relatively small swap participants to compete with larger dealers and participants.
Citadel commented that by eliminating bilateral counterparty credit exposure and trading documentation, clearing can lead to market structure innovations such as trading solutions that allow investors to trade directly with one another instead of through intermediaries.
Citadel also commented that clearing lowers execution costs in addition to increasing liquidity. Citadel cited academic research published in 2016 indicating that the Commission's existing IRS clearing requirement, together with trading reforms, have enabled swap market participants to save as much as $20 million to $40 million per day, with between $7 million and $13 million of the savings by market participants being attributed to market participants that do not act as dealers in the swaps market.
Two commenters, JBA and Citadel, voiced contrasting views concerning the effects of only one DCO offering a swap subject to a clearing requirement. JBA stated that when only one DCO offers a swap for clearing, costs might increase for market participants to join that DCO or enter into new client clearing arrangements with clearing members of that DCO. JBA also commented that there may be lower liquidity for swaps newly offered at a particular DCO.
By contrast, Citadel commented that the possibility of only one DCO offering to clear a particular swap would not have adverse effects because swap market participants generally prefer to clear swaps at one DCO instead of at multiple DCOs in order to reduce costs by maximizing netting, compression, and margin offsets. Citadel also commented that fees charged by FCMs, rather than fees charged by DCOs, are the major source of clearing costs.
With regard to JBA's comment, in light of the fact that there are only three swaps covered by the determination that are currently offered for clearing by solely one DCO (MXN-denominated fixed-to-floating interest rate swaps, currently offered for clearing only at CME; and AUD- and CAD-denominated OIS, currently offered for clearing only at LCH), and LCH and CME have indicated that they intend to begin offering to clear each of these swaps, respectively, before the end of 2016, the Commission believes that JBA's competitive concerns about only one DCO offering a particular swap will be largely addressed.
While not explicitly addressing the fourth factor under section 2(h)(2)(D)(ii) of the CEA, ISDA expressed concern about how the clearing requirement for AUD- and HKD-denominated interest rate swaps might affect competition due to the fact that the Commission exempted ASX and OTC Clearing Hong Kong from DCO registration, meaning that they may clear these swaps for U.S. proprietary accounts but not for U.S. customer accounts.
Citadel's comments suggest that extinguishing bilateral counterparty credit exposure and eliminating complex bilateral trading documentation for swaps subject to a clearing requirement enables market participants to access a wider range of execution counterparties and encourages the entry of new liquidity providers.
For the reasons described above and in light of the comments received, the Commission concludes that it has considered the effect of the expanded clearing requirement on competition and found that it potentially could impact competition within the affected market, but anticompetitive behavior is likely to be constrained and demand for clearing services is expected to grow. Accordingly, the Commission reaffirms its conclusion stated in the NPRM that its consideration of competitiveness is sufficient to expand the clearing requirement to include the swaps subject to this rulemaking, which are referenced in revised regulation 50.4(a).
Section 2(h)(2)(D)(ii)(V) of the CEA requires the Commission to take into account the existence of reasonable legal certainty in the event of the insolvency of the relevant DCO or one or more of its clearing members with regard to the treatment of customer and swap counterparty positions, funds, and property. The Commission is issuing this clearing requirement based on its view that, as stated in the NPRM, there is reasonable legal certainty with regard to the treatment of customer and swap counterparty positions, funds, and property in connection with cleared
The Commission concludes that, in the case of a clearing member insolvency at CME, where the clearing member is the subject of a proceeding under the U.S. Bankruptcy Code, subchapter IV of Chapter 7 of the U.S. Bankruptcy Code (11 U.S.C. 761-767) and parts 22 and 190 of the Commission's regulations would govern the treatment of customer positions.
Similarly, 11 U.S.C. 761-767 and part 190 would govern the bankruptcy of a DCO where the DCO is the subject of a proceeding under the U.S. Bankruptcy Code, in conjunction with DCO rules providing for the termination of outstanding contracts and/or return of remaining clearing member and customer property to clearing members.
With regard to LCH, the Commission understands that the default of a clearing member of LCH would be governed by LCH's rules. LCH, a DCO based in the U.K., has represented that pursuant to European Union law, LCH's rules would supersede English insolvency laws.
The Commission also considered the implications of the U.K.'s recent referendum vote to withdraw from the European Union. The terms of any such withdrawal cannot be known at this time. Negotiations have not begun, and the U.K. has not yet given notice under Article 50 of the Treaty on the European Union to begin the withdrawal process. Thus, there is no indication at this time that there will be changes to the U.K.'s financial regulation regime that is based on European Union law. On June 24, 2016, the day after the vote, the Bank of England Governor Mark Carney indicated that the Bank of England's responsibilities for monetary and financial stability were unchanged by the referendum's result.
LCH has advised the Commission that it does not anticipate proposing any changes to its rulebook in light of the referendum, nor does it anticipate any changes to applicable law at this time. The Commission therefore expects LCH's legal opinions related to insolvency to remain valid until further notice and expects that a default of a clearing member of LCH will continue to be governed by LCH's rules. The Commission will continue to monitor developments related to the U.K. referendum.
With regard to SGX, the Commission understands that the default of an SGX clearing member, or SGX itself, would be governed by Singapore law, except for certain SGX rules relating to cleared swaps customer collateral, as part 22 of the Commission's regulations defines that term, which are governed by U.S. law. Like LCH, SGX has obtained, and shared with the Commission, a legal opinion that support the existence of such legal certainty.
Better Markets and Citadel commented that they agree with the Commission that reasonable legal certainty exists in the event of an insolvency of a DCO or one or more of its clearing members with respect to the interest rate swaps covered by the NPRM. Citadel noted that the legal framework set forth in the CEA, the U.S. Bankruptcy Code, and Commission regulations applies equally to any swap cleared by a DCO. Citadel believes that the implementation of the Dodd-Frank Act has strengthened this legal framework. The Commission received no other comments related to legal certainty in the event of insolvency.
For the reasons described above and in light of the comments received, the Commission reaffirms its conclusion stated in the NPRM that reasonable legal certainty exists in the event of the insolvency of each of the relevant DCOs or one or more of their clearing members with regard to the treatment of customer and swap counterparty positions, funds, and property to expand the clearing requirement so that it includes the swaps subject to this rulemaking, which are referenced in revised regulation 50.4(a).
The Commission received a number of generally applicable comments that are separated into three broad topics for discussion below: (i) Access to DCOs, (ii) additional data considered by the Commission in response to ISDA's request, and (iii) the Commission's trade execution requirement.
JBA raised concerns about possibly needing to establish a clearing relationship with a new DCO in order to comply with the proposed expanded clearing requirement.
CME Group raised concerns about market participants being able to establish an account with a clearing member. In response to comments about access to DCOs, the Commission notes, as it did in the First Clearing Requirement Determination, that any market participant may petition for relief under Commission regulation 140.99 if the entity is unable to find an FCM to clear its swaps or if it needs additional time to complete requisite documentation.
One commenter, ISDA, raised an issue about the type of data and analysis included in the NPRM. In its comment letter, ISDA said that based on the data presented in the NPRM, “it is difficult to determine the impact that the [clearing requirement expansion] would have on market participants,” particularly for “market participants in an individual jurisdiction.” ISDA requested data on (1) the volume of transactions entered into by entities subject to the CFTC's new clearing requirement that currently enter into swaps subject to this rulemaking on an uncleared basis, and (2) the percentage of each swap subject to this rulemaking that is cleared voluntarily, on a jurisdiction-by-jurisdiction basis.
The Commission notes that ISDA's suggested data analysis is not specifically required under the five statutory factors that the Commission must consider when making a clearing requirement determination, as outlined in sections 2(h)(2)(D)(ii)(I)-(V) of the CEA.
Recognizing that the interest rate swaps market is global and market participants are interconnected, the Commission reviewed worldwide data collected in the BIS triennial central bank survey for interest rate derivatives
In addition to the data on
According to Row E in Table 16, anywhere from 18% to 70% of the interest rate derivatives denominated in a particular currency are transacted in the home country that issued the currency. The percentage of activity that occurs in the home country supports the decision made by each domestic authority to establish a clearing mandate for particular interest rate swaps denominated in that currency. But in each case, there also is measurable trading activity taking place outside of the home country jurisdiction.
In terms of which market participants are trading in particular markets, the BIS data available does not categorize the daily average turnover by transactions entered into by U.S. or non-
Foreign jurisdictions have expressed concern that potential market dislocation and competitive disadvantage may result if there is no U.S. clearing requirement covering the same swaps that are mandated to be cleared by non-U.S. jurisdictions. This concern is driven by the fact that a market participant's choice in counterparty may be influenced by the existence or absence of a clearing requirement. Similarly, from the U.S. perspective, distortion of market participants' choices could be competitively detrimental to the extent that U.S. market participants are subject to a clearing requirement under U.S. law, but their competitors in a foreign jurisdiction are not. Recognizing this concern, international authorities agreed to harmonize clearing mandates across jurisdictions to the extent practicable and as appropriate.
Another variable that likely is affecting decisions made by both U.S. and non-U.S. market participants vis-à-vis central clearing is the imposition of margin for uncleared swaps. The new uncleared margin regulations began phasing in on September 1, 2016.
The Commission cannot predict exactly how market participants will be affected by the implementation of an analogous clearing requirement in the U.S., particularly in the current environment where multiple, changing factors, including new margin requirements, may influence a market participant's decision about whether to clear a swap. The Commission and its staff are committed to monitoring market activity in order to assess the impact of its regulations on market behavior. In its ongoing work, the Commission intends to rely on publicly available data, such as the forthcoming BIS triennial survey, as well as the data market participants report to SDRs under part 45 of the Commission's regulations.
Three comment letters discussed the possibility of a trade execution requirement concerning some or all of the interest rate swaps subject to this rulemaking.
SIFMA AMG commented that the Commission should temporarily suspend acceptance of “made-available-to-trade” submissions, under Commission regulations 37.10 and 38.12, for swaps covered by the expanded clearing requirement until amendments to the made-available-to-trade process have been adopted. SIFMA AMG provided five specific comments on how the made-available-to-trade regulations should be amended.
Finally, Citadel commented that the Commission should proceed with finalizing the expanded clearing requirement despite the ongoing discussions regarding a revised made-available-to-trade process.
As the Commission stated in the NPRM, pursuant to section 2(h)(8) of the CEA and Commission regulations 37.10 and 38.12, a trade execution requirement could, in the future, apply to some or all of the interest rate swaps covered by this rulemaking.
The Commission promulgated regulation 50.4 in 2012 when it issued the First Clearing Requirement Determination, which applied to certain interest rate swaps and credit default swaps.
For the reasons discussed above, the Commission has decided to expand regulation 50.4(a) as proposed, with the exception of not adopting a requirement to clear AUD-denominated FRAs. Thus the Commission is adopting amendments to regulation 50.4(a) as follows: (i) Adding fixed-to-floating interest rate swaps denominated in the nine additional currencies; (ii) adding AUD-denominated basis swaps; (iii) adding NOK-, PLN-, and SEK-denominated FRAs; (iv) changing the maximum stated termination date for USD-, GBP-, and EUR-denominated OIS to three years from two years; and (v) adding AUD- and CAD-denominated OIS. The specifications of the swaps set forth in revised regulation 50.4(a) are consistent with those that are the subject of clearing requirements proposed or issued by other jurisdictions.
In its comment letter, Scotiabank suggested that four of the specifications in proposed regulation 50.4(a) describing MXN-denominated fixed-to-floating interest rate swaps should be finalized differently from the specifications proposed. For the reasons described below, the Commission has decided to finalize the specifications as proposed.
First, Scotiabank suggested that the floating rate index should be described as “TIIE 28” instead of “TIIE”
Second, Scotiabank commented that the maximum termination date range for MXN-denominated fixed-to-floating interest rate swaps covered by expanded regulation 50.4(a) should be 30 years in order to match the exact product specifications of the Mexican clearing requirement, instead of 21 years, as the Commission proposed. The Commission notes that CME, the only registered DCO currently offering to clear these swaps, offers to clear swaps having a maximum term of 21 years. Therefore, the Commission is finalizing the termination date range as proposed.
Third, Scotiabank suggested that MXN-denominated fixed-to-floating interest rate swaps subject to the Commission's clearing requirement should cover only swaps having notional amounts in multiples of MXN 100,000 because Asigna, a Mexican clearinghouse, offers to clear only swaps having such notional amounts.
Fourth, Scotiabank suggested that the MXN-denominated fixed-to-floating interest rate swaps subject to the Commission's clearing requirement should contain an exception for counterparties having “low net exposure,” in order to match the Mexican clearing requirement. As an initial matter, section 2(h) of the CEA defines the participant scope of the Commission's clearing requirement: All swap market participants are expected to comply with a Commission-issued clearing requirement, except for certain non-financial end-users.
In their comment letters, JBA and Scotiabank requested confirmation that a market participant subject to the expanded clearing requirement would be required to clear swaps subject to this final rulemaking that are executed on or after the effective date of the final rulemaking, but not be required to backload swaps executed prior to that date. In response to this comment, the Commission confirms, as it did in the First Clearing Requirement Determination, that market participants will not be required to clear swaps subject to this rulemaking that are executed prior to the effective date of this final rulemaking.
In the NPRM, the Commission stated that it did not intend to rely upon its schedule for phasing-in the clearing requirement by market participant type, as codified in Commission regulation 50.25 and relied upon for the First Clearing Requirement Determination. The Commission further proposed two alternative methods for establishing a CFTC clearing requirement compliance date.
The Commission received comments on four aspects of the overall proposed implementation schedule. First, commenters discussed whether the Commission should offer a compliance date phase-in by market participant type. The Commission addresses these comments in section IV.A below. Second, commenters discussed whether the Commission should adopt a single compliance date for all products subject to this determination, or whether the Commission should adopt compliance dates based on the effective date of a non-U.S. jurisdiction's clearing mandate. The Commission addresses these comments in section IV.B below. Third, commenters requested clarifications on a number of discrete points related to the implementation schedule. The Commission addresses these comments in section IV.C below. Finally, commenters discussed whether
The Commission proposed adopting one compliance date for all market participant types, rather than rely on the phase-in schedule codified in regulation 50.25.
MFA supported the Commission's proposal not to phase-in the compliance date by market participant type and agreed that market participants are ready, willing, and able to clear the swaps subject to this rulemaking. Citadel agreed with the Commission's position that the phase-in by counterparty type is not necessary. Citadel pointed out that because market participants, in most cases, have established clearing arrangements with DCOs and are familiar with the process of central clearing, there is no need to delay compliance dates by including a phase-in by market participant type. LCH Group commented that while the use of a compliance date phase-in by market participant type was successful in connection with the Commission's First Clearing Requirement Determination, it would not be equally beneficial in this context.
Of the two commenters that requested a compliance date phase-in by market participant type, one thought that market participants would be unable to comply with the clearing requirement in the time frame established. ISDA urged the Commission to adopt an implementation schedule that incorporates the 270-day phase-in schedule outlined in Commission regulation 50.25. ISDA expressed concern about the consequences for entities that currently may not be subject to an analogous clearing mandate outside of the U.S. in terms of addressing legal, documentation, operational, and other considerations. SIFMA AMG also recommended that the Commission use a phase-in schedule by market participant type, but did not specify a reason for this recommendation.
The Commission recognizes that the compliance date phase-in by market participant type was beneficial in the context of the First Clearing Requirement Determination. However, because market participants are experienced in clearing USD, EUR, GBP, and/or JPY-denominated interest rate swaps and there is a substantial amount of voluntary clearing activity in the swaps subject to this rulemaking, the Commission has decided that there is no need to phase-in the compliance dates for this clearing requirement by market participant type in accordance with regulation 50.25 or otherwise. Regulation 50.25 provides the Commission with the discretion to phase in compliance. Regulation 50.25(b) provides that upon issuing a clearing requirement determination under section 2(h)(2) of the CEA, the Commission
A broad cross-section of market participants, including both direct clearing members and their clients or customers, has experience clearing the four classes of interest rate swaps under regulation 50.4(a) and has been clearing certain swaps subject to this final rulemaking on a voluntary basis. The Commission believes that most market participants that would be subject to the expanded clearing requirement already clear, or have clearing service arrangements in place to clear, the types of interest rate swaps subject to the existing clearing requirement. The Commission does not expect that these types of market participants, for the most part, would need to establish connectivity to DCOs, document new client clearing arrangements, or otherwise prepare themselves and/or their customers in order to comply with this clearing requirement determination as they may have needed to do in order to comply with the First Clearing Requirement Determination. The Commission will consider carefully any concerns raised by market participants that cannot gain access to a DCO in order to clear swaps subject to this rulemaking before an applicable compliance date.
The Commission received similar comments concerning the difficulty market participants may have in accessing DCOs and establishing relationships with FCMs at the time it was considering the First Clearing Requirement Determination. In response to those comments, the Commission noted that “any market participant may petition for relief under regulation 140.99 if that entity is unable to find an FCM to clear its swaps or if it needs additional time to complete requisite documentation.”
The Commission proposed two alternative implementation scenarios in the NPRM. Under the first scenario, all swaps subject to this rulemaking would be required to be cleared on the same date—60 days after the final rulemaking is published in the
After reviewing comments on the two implementation scenarios proposed, the Commission has determined that it will adopt Scenario II and will tie the CFTC's compliance date for each product to the first compliance date for a market participant in a non-U.S. jurisdiction.
The Commission received eight comments on whether to implement Scenario I or Scenario II. MFA supported Scenario I because it would allow the Commission to move forward promptly with expanding the clearing requirement for the products subject to this determination. MFA noted that Scenario II was a reasonable option, but preferred Scenario I. Citadel stated that Scenario I was realistic and concluded that most market participants were prepared for the clearing requirement and had infrastructure in place to comply. Scenario I received support for its simple application and because it would bring the clearing requirement into force for certain products more quickly than under Scenario II. While the Commission agrees with these points, and notes that Scenario I would provide market participants with certainty and simplicity, it has decided to adopt Scenario II.
To the extent practicable, the Commission believes it is important to account for non-U.S. jurisdictions' timelines for mandating clearing when imposing a compliance date for U.S. market participants. The implementation schedule under Scenario II will provide flexibility for market participants, will facilitate compliance by phasing-in the clearing requirement by specific product, and will further the Commission's goals of harmonizing clearing requirements with those abroad.
Six commenters supported adoption of implementation Scenario II. JBA requested that the Commission adopt Scenario II in order to promote market liquidity and stability and to harmonize with clearing requirements issued by non-U.S. jurisdictions. ASX advocated for the Commission to adopt Scenario II to minimize any potential disruptions caused by differences in implementation timing of clearing mandates across jurisdictions. ISDA preferred Scenario II on the grounds that it would promote global harmonization and is consistent with maximizing liquidity and reducing risk. SIFMA AMG recommended Scenario II because it would further the Commission's efforts to harmonize with other jurisdictions. LCH Group agreed with the Commission that Scenario II would provide flexibility and certainty and would foster further international harmonization of adoption of clearing requirements. Finally, CME Group stated that the Commission should work cooperatively with regulators in other jurisdictions and that it supports the extension of the Commission's clearing requirement determination where it is necessary for global harmonization.
The Commission has determined that Scenario II will be used to determine compliance dates for market participants subject to the Commission's clearing requirements (hereinafter referred to as the Implementation Schedule). Thus, the Commission's clearing requirement compliance date for each interest rate swap product covered by this determination will be the earlier of: (i) The first date that U.S. markets are open 60 calendar days after any person is first required to comply with an analogous clearing requirement that has been adopted by a regulator in a non-U.S. jurisdiction, provided that any such date for any swap covered by the final rule shall not be earlier than the date which is 60 calendar days after the Commission's final rule is published, or (ii) the first date U.S. markets are open two years after the Commission's final rule is published in the
A number of commenters raised questions about details in the Commission's proposed implementation schedule, as it was described in the NPRM. The Commission responds below to each of the comments and provides clarifications to the Implementation Schedule, as appropriate.
SIFMA AMG suggested that the Commission extend the time period that will elapse between a non-U.S. jurisdiction adopting a clearing mandate and the Commission's implementation of a compliance date for swaps subject to amended regulation 50.4(a). Specifically, SIFMA AMG recommended that the Commission wait 180 days after an effective date in a non-U.S. jurisdiction before requiring compliance with this final rulemaking.
The Commission has considered the timeframe necessary for U.S. market participants to prepare for, and comply with, a clearing requirement for the swaps subject to this determination and decided that 60 calendar days will provide enough time for U.S. market participants to comply.
Citadel asked the Commission to clarify how the Commission would establish the “effective date” in a non-U.S. jurisdiction, which is used to determine the CFTC compliance date. Citadel pointed out that when a non-U.S. jurisdiction's uses of a phased-in compliance schedule it could create ambiguity if the Commission's rule is not clarified.
The Commission recognizes that the term “effective date” can have a different meaning in different jurisdictions based on local law and procedure. Therefore, the Commission is clarifying that the CFTC's clearing requirement will be based on the first date upon which any person in the non-U.S. jurisdiction is initially subject to a clearing mandate for new trades,
As proposed in the NPRM, Scenario II included a two-year time limit providing that compliance with the expanded clearing requirement would be required no later than two years after the final rule is published in the
MFA commented that, while it preferred Scenario I, Scenario II was a reasonable option because the Commission included a two-year time limit. In its comment letter, Citadel recognized the importance of retaining the two-year time limit and noted that “it is important to retain an outer bound
SIFMA AMG recommended that the Commission revise its proposed implementation schedule to remove the “proviso” that would cause an automatic effective date no later than two years after the date that the final rulemaking is published in the
The Commission observes that since the publication of the NPRM, significant progress has been made with regard to the status of clearing requirements in almost all non-U.S. jurisdictions relevant to this rulemaking. Five of the seven jurisdictions have established compliance dates for their market participants to begin clearing pursuant to their analogous clearing mandates. Only Singapore and Switzerland have not yet finalized their clearing mandates and set compliance dates.
In order to assure market participants that there will be a date certain by which they will be required to comply with the clearing requirement for these swaps, particularly for the SGD-denominated fixed-to-floating and CHF-denominated fixed-to-floating interest rate swaps, the Commission has decided to retain the two-year time limit in the Implementation Schedule. In reaching this conclusion, the Commission is cognizant of its obligations to provide legal certainty under applicable statutory procedures. The Commission also recognizes the importance of providing market participants with certainty about compliance dates so that they can begin operational planning and preparation for required clearing of all swaps subject to this final rulemaking. To the extent that market participants need adequate time to onboard clients and establish connectivity to eligible DCOs, retaining the two-year time limit is important.
In finalizing this rulemaking, the Commission seeks to balance flexibility with certainty in its Implementation Schedule. In the event that Singapore and Switzerland do not finalize their clearing mandates and set compliance dates within the two-year time limit, the Commission and Commission staff would be open to considering options for modifying the compliance deadline as necessary and appropriate.
The Commission received a number of comments that requested an analysis of the scope of entities subject to the non-U.S. jurisdiction's clearing requirement and consideration of whether the entities subject to the CFTC's clearing requirement were “analogous.” ASX suggested that the CFTC's assessment of analogous clearing requirements in non-U.S. jurisdictions should include an analysis of the classes of counterparties that are subject to such clearing requirements. Scotiabank asked the Commission to consider the fact that the Banco de México's regulations contain an exception from the clearing mandate for entities with low net derivatives exposure. And ISDA pointed out that the scope of entities subject to a non-U.S. clearing mandate may be narrower than the scope of market participants subject to the Commission's clearing requirement rules under part 50.
By contrast, in its comment letter, Citadel cautioned that if the Commission were to adopt rules that incorporated the entity scope of each non-U.S. jurisdiction's clearing mandate, the U.S. framework would “become a confusing patchwork of foreign regulation, compelling U.S. market participants to apply different criteria on a currency-by-currency basis to determine whether (and when) they are in-scope.”
As discussed above, section 2(h)(7) of the CEA sets forth the participant scope for the clearing requirement: It shall be unlawful for any person not to clear a swap if that swap is required to be cleared, except if one of the counterparties to the swap meets certain conditions enumerated in section 2(h)(7) of the CEA. The Commission has implemented the statutory exception under section 2(h)(7), along with other limited exemptions, in subpart C of part 50 of the Commission's regulations. Based on this statutory and regulatory framework as well as its consideration of the comments presented, the Commission confirms that this final rulemaking applies to the same scope of market participants to which Commission regulation 50.4(a) currently applies.
The Commission has been monitoring, and will continue to follow closely, clearing mandate developments in other jurisdictions that relate to this clearing requirement determination. As discussed above, the Commission's clearing requirement compliance date is specific to each product and will be calculated by following the Implementation Schedule presented herein. With respect to products that do not yet have a compliance date set for an analogous clearing mandate in a non-U.S. jurisdiction, the Commission is including the date that is two years after the date of publication in the
Below is a chart identifying the projected compliance date for each of the products subject to this determination.
Expanded Commission regulation 50.4(a) identifies certain swaps that would be required to be cleared under section 2(h)(1)(A) of the CEA in addition to those currently required to be cleared by existing regulations 50.2 and 50.4(a). This clearing requirement determination is designed to standardize and reduce counterparty risk associated with swaps, and in turn, mitigate the potential systemic impact of such risks and reduce the likelihood for swaps to cause or exacerbate instability in the financial system. As stated in the NPRM, the Commission believes this determination is consistent with one of the fundamental premises of the Dodd-Frank Act and the 2009 commitments adopted by the G20 nations: The use of central clearing can reduce systemic risk.
Regulation 39.5 provides an outline for the Commission's review of swaps for required clearing. Regulation 39.5 allows the Commission to review swaps submitted by DCOs. Under section 2(h)(2)(D) of the CEA, in reviewing swaps for a clearing requirement determination, the Commission must take into account the following factors: (1) Significant outstanding notional exposures, trading liquidity and adequate pricing data; (2) the availability of rule framework, capacity, operational expertise and credit support infrastructure to clear the contract on terms that are consistent with the material terms and trading conventions on which the contract is then traded; (3) the effect on the mitigation of systemic risk; (4) the effect on competition; and (5) the existence of reasonable legal certainty in the event of the insolvency of the DCO or one or more of its clearing members.
The following discussion is a consideration of the costs and benefits of the Commission's action in this rulemaking, pursuant to the regulatory requirements above. The Commission exercises its discretion under section 2(h)(2)(D) of the CEA to determine whether swaps that are submitted for a clearing requirement determination are required to be cleared.
When a bilateral swap is cleared, the DCO becomes the counterparty to each original counterparty to the swap. This arrangement mitigates counterparty credit risk because the DCO: (1) Monitors and mitigates the risk of a counterparty default; (2) collects sufficient initial margin to cover potential future exposures and regularly collects and pays variation margin to cover current exposures; (3) facilitates netting within portfolios of swaps and among counterparties; and (4) holds collateral in a guaranty fund in order to mutualize the remaining tail risk not covered by initial margin contributions among clearing members. Central clearing mitigates the interconnectedness among swap market participants, insofar as, upon acceptance of a swap for clearing, a DCO becomes the new counterparty to each of the original counterparties and guarantees performance on the contract. Moreover, DCOs are independent third parties that are subject to regulatory oversight—including, among other things, financial resources requirements and risk management requirements. Accordingly, from the perspective of market participants, DCOs pose significantly less counterparty credit risk than their original counterparties.
DCOs have demonstrated resilience in the face of past market stress. DCOs remained financially sound and effectively settled positions in the midst of turbulent financial conditions in 2007-2008 that threatened the financial health and stability of many other types of entities.
The Commission believes that central clearing through DCOs will continue to mitigate systemic risk because DCOs have numerous risk management tools available that are effective in monitoring and managing counterparty credit risk. These tools include the contractual right to: (1) Collect initial and variation margin associated with outstanding swap positions; (2) mark positions to market regularly, usually multiple times per day, and issue margin calls whenever the margin in a clearing member's or customer's account has dropped below predetermined levels set by the DCO; (3) adjust the amount of margin that is required to be held against swap positions in light of changing market circumstances, such as increased volatility in the underlying product; and (4) close out the swap positions of a clearing member or customer that does not meet margin calls within a specified period of time.
Moreover, in the event that a clearing member defaults on its obligations to the DCO, the DCO has numerous remedies available to manage risk, including transferring the swap positions of the defaulted member to another clearing member, and covering any losses that may have accrued with the defaulting member's margin on deposit. In order to transfer the swap positions of a defaulting member and manage the risk of those positions, the DCO has the ability to take a number of steps, including: (1) Hedge the portfolio of positions of the defaulting member to limit future losses; (2) partition the portfolio into smaller pieces; and (3) auction off the pieces of the portfolio, together with their corresponding hedges, to other members of the DCO. In order to cover the losses associated with such a default, the DCO would typically draw from: (1) The initial margin posted by the defaulting member; (2) the guaranty fund contribution of the defaulting member; (3) the DCO's own capital contribution; (4) the guaranty fund contributions of non-defaulting members; and (5) an assessment on the non-defaulting members. These mutualized risk mitigation capabilities are largely unique to clearinghouses and help to ensure that they remain solvent and creditworthy swap counterparties even when clearing members default or there are stressed market circumstances.
With the passage of the Dodd-Frank Act, Congress gave the Commission the responsibility for determining which swaps would be required to be cleared pursuant to section 2(h)(1)(A) of the CEA. Therefore, the costs and benefits associated with a clearing requirement are attributable to both the CEA, as amended by the Dodd-Frank Act, and the Commission acting in accordance with the CEA. As a result, it is difficult to distinguish between the costs associated with the Dodd-Frank Act itself, and the costs associated with the Commission exercising the authority granted to it by the Dodd-Frank Act.
There also is evidence that the interest rate swaps market has been migrating into clearing for many years in response to market incentives, in anticipation of the Dodd-Frank Act's clearing requirement, and as a result of the First Clearing Requirement Determination. This shift can be seen in the volumes of interest rate swaps currently being cleared by CME and LCH, the two DCOs that submitted a significant portion of the information contained in the NPRM as well as this determination. The open notional value of interest rate swaps cleared at CME has increased from approximately $2.2 trillion to over $5.5 trillion between June 10, 2013 and September 10, 2013, two implementation dates for the First Clearing Requirement Determination.
For these reasons, the Commission has determined that the costs and benefits related to the required clearing of the interest rate swaps subject to this rulemaking are attributable, in part to (1) Congress's stated goal of reducing systemic risk by, among other things, requiring clearing of swaps and (2) the Commission's exercise of its discretion in selecting swaps or classes of swaps to achieve those ends. The Commission will discuss the costs and benefits of the overall move from voluntary clearing to required clearing for the swaps subject to this rulemaking below.
In the NPRM, the Commission requested comment concerning its assumption that a shift towards clearing may be due to the Dodd-Frank Act's general clearing requirement or other motivations including independent business reasons and incentives from other regulators, such as prudential authorities. While no commenter answered this question directly, Citadel suggested that a shift towards clearing may be due to cost savings attributable to clearing swaps at central counterparties.
Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders. Section 15(a) further specifies that the costs and benefits shall be evaluated in light of the following five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness and financial integrity; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations (collectively referred to herein as the Section 15(a) Factors). Accordingly, the Commission considers the costs and benefits associated with the clearing requirement determination in light of the Section 15(a) Factors.
The Commission notes that the consideration of costs and benefits below is based on the understanding that the markets function internationally, with many transactions involving U.S. firms taking place across international boundaries; with some Commission registrants being organized outside of the United States; with industry members typically conducting operations both within and outside the United States; and with industry members commonly following substantially similar business practices wherever located. Where the
As stated above, the Commission received 10 comment letters following publication of the NPRM, seven of which supported the proposed determination. Some commenters generally addressed the costs and benefits of the current rule.
In the sections that follow, the Commission considers: (1) The costs and benefits of required clearing for the swaps subject to this clearing requirement determination; (2) the alternatives contemplated by the Commission and their costs and benefits; and (3) the impact of required clearing for the swaps subject to this final rulemaking and listed in expanded regulation 50.4(a) in light of the Section 15(a) Factors.
Market participants may incur certain costs in order to clear the interest rate swaps included in this adopting release. For example, market participants that are not already clearing interest rate swaps either voluntarily or pursuant to the First Clearing Requirement Determination may incur certain startup and ongoing costs related to developing technology and infrastructure, updating or creating new legal agreements, service provider fees, and collateralization of the cleared positions. The per-entity costs described above are likely to vary widely depending on the needs of each market participant. Such costs likely will be lower for the market participants that have experience clearing the interest rate swaps covered by the First Clearing Requirement Determination and/or that have been clearing the interest rate swaps subject to this clearing requirement determination on a voluntary basis. The opposite likely would be true for market participants that must begin clearing because of this expanded determination. Although these market participants may have otherwise incurred costs associated with margining their uncleared swaps with bilateral counterparties, as well as incurring other costs associated with bilateral uncleared swaps, such as startup or ongoing costs related to developing technology and infrastructure, and updating or creating new legal agreements related to their uncleared swaps positions. Moreover, operational costs for these market participants would increase based on the number of different counterparties with whom they enter into uncleared swaps. The overall costs of collateralization are likely to vary depending on whether or not an entity is subject to the new margin requirements for uncleared swaps,
Market participants that would begin clearing the interest rate swaps subject to this rulemaking also will obtain the benefits associated with clearing. These benefits include reduced and standardized counterparty risk, increased transparency, and easier access to the swap markets. Together, these benefits will contribute significantly to the stability and efficiency of the financial system. However, these benefits are difficult to quantify with any degree of precision, and market participants already clearing these swaps already realize the benefits of clearing.
In the NPRM, the Commission requested comment concerning the costs of clearing, including from both U.S. and non-U.S. swap counterparties that may be affected by the determination. The Commission also requested comment as to the benefits that market participants could realize as a result of the proposed rule. JBA generally commented that it was opposed to the proposed determination because rising costs incurred by clearing brokers, due to capital leverage requirements, for example, have decreased the number of available clearing brokers.
Market participants already clearing their swaps may incur costs in making necessary changes to technology systems to support the clearing required by the final rule. Market participants that are not currently clearing swaps may incur costs if they need to implement middleware technology to connect to FCMs that will clear their transactions. Similarly, legal costs will vary depending on the extent to which a market participant is already clearing swaps. The Commission does not have the information necessary to determine either the costs associated with entities that need to establish relationships with one or more FCMs or the costs associated with entities that already have relationships with one or more FCMs but need to revise their agreements.
In the NPRM, the Commission requested comment, including any quantifiable data and analysis, on the changes that market participants will have to make to their technological and legal infrastructures in order to clear the interest rate swaps that would be subject to the expanded clearing requirement. JBA commented that swap market participants may incur costs as a result of having to become a clearing member of a new DCO, or enter into a new client clearing relationship with a DCO clearing member, if there is only one DCO offering to clear a particular swap
In addition to costs associated with technological and legal infrastructures, market participants transacting in swaps subject to the expanded clearing requirement will face ongoing costs associated with fees charged by FCMs. DCOs typically charge each FCM an initial transaction fee for each cleared interest rate swap its customers enter, as well as an annual maintenance fee for each open position. CME, LCH, Eurex, and SGX offer a variety of fee schedules for clearing interest rate swaps. In general, the schedules depend on the length of a swap's term, the number of swaps cleared per year, and/or a clearing member's initial margin requirement at the DCO. For example, at LCH and Eurex, different fee schedules are available depending on whether a clearing member is clearing for its proprietary account or for a customer account.
The Commission understands that FCMs generally pass onto their customers the fees that they have been charged by the DCO. In addition, as noted in the NPRM, the Commission understands that customers that occasionally transact in swaps are typically required by their FCMs to pay a monthly or annual fee to each FCM.
As discussed above, it is difficult to predict precisely how the requirement to clear the additional swaps covered by this final rulemaking will increase the use of swap clearing, as compared to the use of clearing that would occur in the absence of the requirement. The Commission expects that the expanded clearing requirement generally will increase the use of clearing, leading in most cases to an incremental increase in the clearing fees noted above. However, while total clearing fees may increase, it may nonetheless be the case that total costs come down due to offsetting benefits. For instance, market competition could cause swap prices to decrease, and market participants may realize benefits due to netting, compression, offsets, and portfolio margining. The Commission expects that most market participants already will have undertaken the steps necessary to accommodate the clearing of required swaps, and that the burden associated with the additional interest rate swaps should be lessened.
In response to the NPRM, Citadel commented that fees charged by FCMs, rather than fees charged by DCOs, are the major source of clearing costs.
Finally, CME Group generally expressed concern about market participants being able to access clearinghouses due to the general reduction in clearing members' “appetite to provide clearing services for smaller firms.” CME Group referenced an ESMA consultation paper proposing a postponement of the implementation of its clearing mandate on such smaller market participants. The Commission is aware that ESMA released a consultation paper on July 13, 2016, requesting comments on a proposal to extend the phase-in period for the clearing obligation for counterparties in a third category under the European Union's clearing regime.
The Commission's statutory authority under Dodd-Frank contains certain enumerated exceptions and exemptions from the clearing requirement.
Market participants that enter into the interest rate swaps subject to the amended rule will be required to post initial margin at a DCO. The Commission understands that some of the swaps subject to this rulemaking are currently being cleared on a voluntary
With information provided
X/Y−X.
X = Current value of margin on deposit at DCOs for an interest rate swap denominated in a particular currency.
Y = Percentage of the market for that swap that is currently cleared. This same methodology was used in the First Clearing Requirement Determination as a rough proxy for estimating the total costs of required clearing in terms of initial margin. As discussed above, commission risk surveillance staff has sophisticated tools for assessing risk-based margin methodologies and coverage levels.
As noted in the NPRM, the Commission believes that these estimates may be higher than the actual amounts of initial margin that would need to be posted as a result of this determination because these estimates are based on several assumptions. First, the estimates assume that none of the swaps that are currently executed on an uncleared basis are currently collateralized. By contrast, an ISDA survey reported that as of December 31, 2014, 88.9% of all uncleared fixed income derivative transactions are subject to a credit support annex.
The amounts of initial margin that the Commission estimates would be required to be posted due to this rule (listed in Table 18) do not include the costs that some market participants may incur to obtain this collateral. Some entities may have to raise funds to acquire assets that a DCO accepts as initial margin. The greater the funding cost relative to the rate of return on the asset used as initial margin, the greater the cost of procuring this asset. Quantifying this cost with any precision is challenging because different entities may have different funding costs and may choose assets with different rates of return. Moreover, funding costs will vary as interest rates and interest rate spreads vary. One way to estimate the funding cost of procuring assets to be used as initial margin is to compare the rate of return, or yield, on an asset that is usually accepted by a DCO for initial margin with the cost of funding the asset with debt financing. Based on the Commission's experience and understanding, the Commission has decided to estimate this cost using an average borrowing cost of 3.35%
The Commission received no comments in response to its question about the cost of funding initial margin or funding costs that market participants may face due to interest rates on bonds issued by a sovereign nation.
The Commission recognizes further that the new initial margin amounts that will be required to be posted as a result of this clearing requirement will, for entities required to post initial margin under either the clearing requirement or the uncleared swap margin regulations, replace current bilateral market practice. The new uncleared swap margin regulations require SDs and MSPs to post and collect initial and variation margin for uncleared swaps executed with their counterparties that are other SDs or MSPs or are “financial end-users,” subject to various conditions and limitations.
The Commission expects that the initial margin that will be required to be posted for a cleared swap subject to this determination will typically be less than the initial margin that would be required to be posted for uncleared swaps pursuant to the uncleared swap margin regulations. Whereas the initial margin requirement for cleared swaps must be established according to a margin period of risk of at least five days,
With respect to swaps that will be subject to this clearing requirement determination, but not subject to the uncleared swap margin regulations, the Commission believes that the new initial margin amounts that will be posted at the DCO will be a displacement of a cost that is currently embedded in the prices and fees for transacting the swaps on an uncleared and perhaps uncollateralized basis rather than a new cost.
Counterparties charge for this implicit line of credit in the spread they offer on uncollateralized, uncleared swaps. It has been argued that the cash flows of an uncollateralized swap (
In addition, the rule may result in added operational costs. With uncleared swaps, counterparties may agree not to collect variation margin until certain thresholds of exposure are reached, thus reducing or entirely eliminating the need to exchange variation margin as exposure changes. DCOs, on the other hand, collect and pay variation margin on a daily basis and sometimes more frequently. As a consequence, increased required clearing may increase certain operational costs associated with exchanging variation margin with the DCO (although the exchange of variation margin may be expected to provide the benefit of lowering the build-up of current exposure). On the other hand, increased clearing also could lead to reduced operational costs related to valuation disputes about posted collateral, as parties to cleared swaps agree to post collateral that is less susceptible to valuation disputes.
The rule also may result in additional costs for clearing members in the form of guaranty fund contributions. However, it also could decrease guaranty fund contributions for certain clearing members. Once the expanded clearing requirement takes effect, market participants that currently transact swaps bilaterally must either become clearing members of a DCO or submit such swaps for clearing through an existing clearing member. A market participant that becomes a direct clearing member must make a guaranty fund contribution, while a market participant that clears its swaps through a clearing member may pay higher fees if the clearing member passes the costs of the guaranty fund contribution to its customers. While not certain, the possible addition of new clearing members and/or new customers for existing clearing members may result in an increase in guaranty fund requirements. However, it should be noted that if (1) any new clearing members are not among the two clearing members used to calculate the guaranty fund and (2) any new customers trading through a clearing member do not increase the size of uncollateralized risks at either of the two clearing members used to calculate the guaranty fund, all else held constant, existing clearing members may experience a decrease in their guaranty fund requirement.
In the NPRM, the Commission requested comment regarding the total amount of additional collateral that would be required due to the proposed clearing requirement. In particular, the Commission sought quantifiable data and analysis.
As noted above, the benefits of swap clearing are generally significant. The Commission believes that while the requirement to margin uncleared swaps in certain circumstances also will mitigate counterparty credit risk, such risk is mitigated further for swaps that are cleared through a central counterparty. Moreover, as discussed above, the clearing requirement under part 50 of the Commission regulations applies to a larger set of market participants than the uncleared swaps margin regulations.
As is the case for the costs noted above, it is impossible to predict the precise extent to which the use of clearing will increase as a result of the final rule, and therefore the benefits of the final rule cannot be precisely quantified. However, the Commission believes that the benefits of increased central clearing resulting from the rule will be substantial, because the additional swaps required to be cleared by the rule have significant volumes within the overall interest rate swap market.
The rule's requirement that certain swaps be cleared is expected to increase the use of central clearing, as well as the number of swap market participants that will benefit from reduced counterparty credit risk and the other risk mitigating tools offered by central clearing through DCOs that are subject to CFTC regulation and supervisory oversight.
As noted above, several commenters praised the Commission's approach to further harmonizing the Commission's swap clearing requirement with requirements issued by non-U.S. jurisdictions.
As noted in the NPRM, this determination is a function of both the market importance of these products and the fact that they already are widely cleared. The Commission believes the interest rate swaps subject to this rulemaking are appropriate to require to be cleared because they are widely used and already have a blueprint for clearing and risk management.
Given the implementation of the Commission's First Clearing Requirement Determination for interest rate swaps, and the widespread use of central clearing for the additional products included in this determination, DCOs, FCMs, and market participants already have experience clearing the types of swaps subject to this rulemaking. The Commission therefore expects that DCOs and FCMs are prepared to handle the increases in volumes and outstanding notional amounts in these swaps that are likely to result from this determination. Because of the widespread use of these swaps and their importance to the market, and because these swaps are already successfully being cleared, the Commission has determined that certain additional interest rate swaps be subject to the clearing requirement.
The Commission considered two alternative implementation scenarios. First, the Commission considered a scenario under which the clearing requirement for all swaps subject to the rulemaking would take effect at the same time, regardless of whether an analogous clearing requirement has been promulgated by an authority of a non-U.S. jurisdiction. The benefits associated with implementing the clearing requirement for all swaps subject to this rulemaking on a single date would include giving market participants certainty and making it easier for industry members to update relevant policies and procedures at one time.
As a second option, the Commission considered a scenario under which compliance with the clearing requirement would be required upon the earlier of (a) the date 60 days after the effective date of an analogous clearing requirement that has been adopted by a regulator in a non-U.S. jurisdiction, provided that any such date for any swap covered by the final rule shall not be earlier than the date which is 60 days after the Commission's final rule is published in the
As discussed above, after considering comments on the two proposed implementation schedules, the Commission has decided to proceed with the second option, a schedule that is tied to the first date upon which any person in a non-U.S. jurisdiction is first subject to a clearing mandate issued by a non-U.S. jurisdiction, not including any front-loading or back-loading requirements.
As noted above, the requirement to clear the fixed-to-floating interest rate swaps, basis swaps, FRAs, and OIS covered by this adopting release is expected to result in increased use of central clearing, although it is not feasible to quantify with certainty the extent of that increase. Thus, this section discusses the expected results from an overall increase in the use of swap clearing in terms of the factors set forth in section 15(a) of the CEA.
As described above, required clearing of the interest rate swaps identified in this clearing requirement determination is expected to most likely reduce counterparty risk for market participants that clear those swaps because they will face the DCO rather than another market participant that lacks the full array of risk management tools that the DCO has at its disposal. This also reduces uncertainty in times of market stress because market participants facing a DCO are less concerned with the impact of such stress on the solvency of their counterparty for cleared trades.
By requiring clearing of certain interest rate swaps, all of which are already available for clearing, the Commission expects, as it stated in the NPRM, that this rule will encourage a smooth transition by creating an opportunity for market participants to work out challenges related to required clearing of swaps while operating in familiar terrain. More specifically, the DCOs currently clearing these interest rate swaps, CME, Eurex, LCH, and SGX, will clear an increased volume of swaps that they already understand and have experience managing. Similarly, FCMs likely will realize increased customer and transaction volume as a result of the requirement, but will not have to simultaneously learn how to operationalize clearing for the covered interest rate swaps. The experience of FCMs with these types of products also is likely to benefit any customers that are new to clearing, as the FCM guides
In addition, uncleared swaps subject to collateral agreements can be the subject of valuation disputes. These valuation disputes sometimes require several months or longer to resolve. Potential future exposures can grow significantly and even beyond the amount of initial margin posted during that time, leaving one of the two counterparties exposed to counterparty credit risk. DCOs significantly reduce and potentially may eliminate valuation disputes for cleared swaps, as well as the risk that uncollateralized exposure can develop and accumulate during the time when such a dispute would have otherwise occurred, thus providing additional protection to market participants that transact in swaps that are required to be cleared.
As far as costs are concerned, market participants that do not currently have established clearing relationships with an FCM will have to set up and maintain such a relationship in order to clear swaps that are required to be cleared. As discussed above, market participants that conduct a limited number of swaps per year likely will be required to pay monthly or annual fees that FCMs charge to maintain both the relationship and outstanding swap positions belonging to the customer. In addition, the FCM is likely to pass along fees charged by the DCO for establishing and maintaining open positions.
It is expected that most market participants already will have had experience complying with prior clearing requirements and that the incremental burdens associated with clearing the additional interest rate swaps subject to this rulemaking should be minimal, especially given the similarities that these products have to those already included within the prior clearing requirement determination and the fact that they are already widely cleared products.
The Commission continues to expect that swap clearing will reduce counterparty risk in times of market stress and promote liquidity and efficiency during those times. Increased liquidity promotes the ability of market participants to limit losses by exiting positions effectively and efficiently when necessary in order to manage risk during a time of market stress.
In addition, to the extent that positions move from facing multiple counterparties in the bilateral market to being cleared through a smaller number of clearinghouses, clearing facilitates increased netting. This reduces the amount of collateral that a party must post in margin accounts.
As discussed above, in setting forth this new clearing requirement determination, the Commission took into account a number of specific factors that relate to the financial integrity of the swap markets. Specifically, the NPRM and the discussion above include an assessment of whether CME, Eurex, LCH, and SGX, each of which currently clears interest rate swaps, have the rule framework, capacity, operational expertise and resources, and credit support infrastructure to clear these swaps on terms that are consistent with the material terms and trading conventions on which the contract is now traded. The Commission also considered the resources of DCOs to handle additional clearing during stressed and non-stressed market conditions, as well as the existence of reasonable legal certainty in the event of a clearing member or DCO insolvency.
In considering the efficiencies, competitiveness, and financial integrity of the swap markets associated with this clearing requirement determination, the Commission observes that the use of bilateral swaps generates a need for market participants to conduct due diligence on each potential counterparty due to concerns about counterparty credit risk. Requiring certain types of swaps to be centrally cleared reduces the number of separate counterparties for which such due diligence is necessary, thereby potentially contributing to the overall efficiency and competitiveness of the swap markets.
In support of this reasoning, Citadel's comments suggest that extinguishing bilateral counterparty credit exposure and eliminating complex bilateral trading documentation for swaps subject to a clearing requirement enables market participants to access a wider range of execution counterparties and encourages the entry of new liquidity providers.
In adopting this clearing requirement for interest rate swaps, the Commission must consider the effect on competition, including appropriate fees and charges applied to clearing. As discussed in more detail in section II.B.iii, there are a number of potential outcomes that may result from required clearing. Some of these outcomes may impose costs, such as if a DCO possessed market power and exercised that power in an anticompetitive manner, and some of the outcomes would be positive, such as if the clearing requirement facilitated a stronger entry opportunity for competitors.
As the Commission noted in the NPRM, central clearing, in general, encourages better price discovery because it eliminates the importance of counterparty creditworthiness in pricing swaps cleared through a given DCO. That is, by making the counterparty creditworthiness of all swaps of a certain type essentially the same, prices should reflect factors related to the terms of the swap, rather than the idiosyncratic risk posed by the entities trading it.
As discussed in section II.C.iii.a above, CME, Eurex, LCH, and SGX obtain adequate pricing data for the interest rate swaps that they clear. Each of these DCOs establishes a rule framework for its pricing methodology and rigorously tests its pricing models to ensure that the cornerstone of its risk management regime is as sound as possible.
If a firm enters into uncleared and uncollateralized swaps to hedge certain positions and then the counterparty to those swaps defaults unexpectedly, the firm could be left with large outstanding exposures. Even for uncleared swaps that are subject to the new uncleared swap margin regulations, some counterparty credit risk remains.
In addition, required clearing reduces the complexity of unwinding or transferring swap positions from large entities that default. Procedures for transfer of swap positions and mutualization of losses among DCO members are already in place, and the Commission anticipates that they are much more likely to function in a manner that enables rapid transfer of defaulted positions than legal processes that would surround the enforcement of bilateral contracts for uncleared swaps.
Central clearing has evolved since the 2009 G20 Pittsburgh Summit, when G20 leaders committed to central clearing of all standardized swaps. The percentage of the swap market that is centrally cleared has increased significantly, clearinghouses have expanded their offerings, and the range of banks and other financial institutions that submit swaps to clearinghouses has broadened. At the same time, the numbers of swap clearinghouses and swap clearing members has remained highly concentrated. This has created concerns about a concentration of credit and liquidity risk at clearinghouses that could have systemic implications.
In September 2009, the President and the other leaders of the G20 nations met in Pittsburgh and committed to a program of action that includes, among other things, central clearing of all standardized swaps.
The Regulatory Flexibility Act (RFA) requires agencies to consider whether the rules they propose will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis respecting the impact.
The Paperwork Reduction Act (PRA)
Business and industry, Clearing, Swaps.
For the reasons set forth in the preamble, the Commodity Futures Trading Commission amends 17 CFR part 50 as follows:
7 U.S.C. 2(h) and 7a-1 as amended by Pub. L. 111-203, 124 Stat. 1376.
(a)
The following appendices will not appear in the Code of Federal Regulations.
On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative.
Central clearing is one of the great innovations of the financial system. Indeed, increasing the use of central clearing for over-the-counter swaps is one of the most important goals of the 2009 G20 Leaders' agreement and the Dodd-Frank Act.
Of course, central clearing does not eliminate the risk of transactions. But clearinghouses can monitor and mitigate that risk, which can make our financial system more stable.
In just a few short years, the percentage of over-the-counter swaps being cleared has increased substantially. And today, I am very pleased that we are continuing this progress by expanding the Commission's swap clearing requirement to include interest rate swaps denominated in nine additional currencies. Our counterparts in the relevant non-U.S. jurisdictions have mandated, or are expected soon to mandate, central clearing for these products, and our requirements will be phased based on when the corresponding clearing requirements have taken effect in non-U.S. jurisdictions.
The Commission's first clearing requirement, adopted in 2012, applied to interest rate swaps denominated in four currencies—U.S. dollar, euro, British sterling, and Japanese yen. Today, we have expanded the interest rate swap clearing requirement to include those denominated in the Australian dollar, Canadian dollar, Hong Kong dollar, Singapore dollar, Mexican peso, Norwegian krone, Polish zloty, Swedish krona, and Swiss franc.
Requiring clearing for these swaps will further reduce risk within our financial system. Today's determination also represents another important step toward cross-border harmonization of swaps regulations, which is critically important to creating an effective regulatory framework.
This rule reflects the CFTC's close coordination with our fellow regulatory authorities from the various jurisdictions with whom we are seeking to harmonize. We also consulted and coordinated with our fellow financial regulators here in the United States.
I want to thank the hardworking CFTC staff for their efforts on this important measure. I'd also like to thank my fellow Commissioners Bowen and Giancarlo for their support.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Final rule.
This final rule revises HUD's regulations for reviewing the previous participation in federal programs of certain participants seeking to take part in multifamily housing and healthcare programs administered by HUD's Office of Housing. The final rule clarifies and simplifies the process by which HUD reviews the previous participation of participants that have decision-making authority over their projects as one component of HUD's responsibility to assess financial and operational risk to the projects in these programs. The final rule, together with an accompanying Processing Guide, clarifies which individuals and entities will undergo review, HUD's purpose in conducting such review, and describe the review to be undertaken. By targeting more closely the individuals and actions that would be subject to prior participation review, HUD not only brings greater certainty and clarity to the process but provides HUD and program participants with flexibility as to the necessary previous participation review for entities and individuals that is not possible in a one-size fits all approach. Through this rule, HUD replaces the current previous participation regulations in their entirety.
Danielle Garcia, Office of Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 6148, Washington, DC 20410; telephone number 202-402-2768 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339 (this is not a toll-free number).
HUD's Previous Participation Review regulations, codified at 24 CFR part 200, subpart H (Subpart H regulations), set forth the HUD process, which applicants seeking to participate in HUD's multifamily housing and healthcare programs must undergo to ensure, including providing a certification, that all principals of the applicant involved in a proposed HUD project have acted responsibly and have honored their legal, financial, and contractual obligations in their previous participation in HUD programs, as well as in certain programs administered by the U.S. Department of Agriculture, and in projects assisted or insured by state and local government housing finance agencies. HUD's regulations governing the assessment of previous participation require applicants to complete a very detailed and lengthy certification form (HUD Form 2530).
The 2530 form requires disclosure of all principals to be involved in the proposed project, a list of projects in which those principals have previously participated or currently participate in, a detailed account of the principals' involvement in the listed project(s), and assurances that the principals have upheld their responsibilities while participating in those programs. HUD's Subpart H regulations govern not only the content of the certification submitted by applicants, but the types of parties that must certify, the process for submitting the certification, the standards by which submissions are evaluated, and the delegations and duties of HUD officials involved in the evaluation of the certifications. The regulations also contain procedures by which applicants can appeal adverse determinations.
The Subpart H regulations, first established in 1980, with some updates over the years, were overdue for significant updating to reflect the deal structures and transaction practices taking place today that were not in place over 20 years ago. For example, the currently codified regulations pre-date the development of limited liability companies as an organizational entity. HUD recognized that the currently codified regulations have not kept step with contemporary organizational structures or transactional practices, and were both over-inclusive and under-inclusive of applicants that should undergo the previous participation review process, creating unnecessary burdens for participants and HUD alike. Further, participants in HUD's multifamily housing and healthcare programs have long complained about the delays with the previous participation review process because of the overly detailed information required to be submitted. Complaints focused on the difficulties associated with obtaining information from all the limited partner investors in individual projects and in duplicating information for multiple levels of affiliates. Participants in HUD's multifamily housing and healthcare programs also stated that the previous participation process requires participants to complete the Form 2530 for each project, regardless of the number of Forms 2530 each participant completed in the recent past, regardless of how many projects the participant is involved in each year, and regardless of whether the participant is a well-established, experienced institutional entity already familiar to HUD.
On August 10, 2015, at 80 FR 47874, HUD published a proposed rule that is designed to comprehensively overhaul the Subpart H regulations.
At the close of public comment period on October 9, 2015, HUD received 33
On May 17, 2016, at 81 FR 30495, HUD supplemented its August 10, 2015, proposed rule with a Supplemental Notice of Proposed Rulemaking (Supplemental Notice). To address commenters' concerns about the need for more specificity in the proposed rule, HUD proposed through this supplemental document to use an approach that HUD has taken in certain of its other regulations and that is to supplement codified regulations with a document specifically referenced in the codified regulations that addresses the specific procedures (processing requirements) to be followed.
In the May 17, 2016, document, HUD proposed to issue with its final regulations a “Processing Guide for Previous Participation Reviews of Prospective Multifamily Housing and Healthcare Programs' Participants” (Processing Guide). This Processing Guide, to be posted on HUD's Web site, will provide the details on procedures which commenters are seeking and which HUD proffered is more appropriate for a process guide than for regulatory text. As provided in the May 17, 2016, document, HUD advised that the Processing Guide will provide applicants for and participants in HUD's multifamily housing and healthcare programs the detailed information desired on the previous participation review process, information about how “flags” are assigned and addressed,
The public comment period on the May 17, 2016, notice closed on June 16, 2016, and HUD received 11 comments. The commenters strongly supported this approach but some commenters stated that greater specificity was still necessary. The public comments and HUD's responses to the public comments on the Supplemental Notice are addressed in Section V of this preamble.
This section highlights the changes made to the proposed rule at this final rule stage.
• The final rule references the Processing Guide as a supplement to HUD's regulations and provides for changes to the guide to be done through advance notice and opportunity for comment.
• The final rule reorganizes information relating to the evaluation of risk into a separate definition of risk.
• The final rule clarifies that Covered Projects include projects subject to continuing HUD requirements only if those requirements are made in connection with a program administered by HUD's Office of Housing.
• The final rule revises terminology to clarify that Controlling Participants include both Specified Capacities and the individuals and entities that control the Specified Capacities.
• The final rule includes construction managers as Controlling Participants in hospital projects insured under section 242 of the National Housing Act.
• The final rule specifies that individuals or entities with the ability to direct the day-to-day operations of a Specified Capacity or a Covered Project are Controlling Participants.
• The final rule specifies that board members of a non-profit that do not otherwise control the day-to-day operations of the non-profit are not Controlling Participants.
• The final rule clarifies that a change in Controlling Participants is a Triggering Event if HUD consent is required for such change.
• The final rule provides more detail on when a Controlling Participant may be disapproved from participation in a Triggering Event on the basis of being restricted from doing business with other government agencies.
• The final rule specifies that reconsideration decisions shall not be rendered by the same individual who rendered the initial review.
• The final rule specifies that Controlling Participants shall receive at least 7 business-days advance notice of a reconsideration.
• The final rule eliminates the bid to purchase a Covered Project or mortgage note held by the Commissioner from the list of Triggering Events.
Many commenters expressed support for HUD's initiation of the proposed rule, which was designed to streamline and improve the previous participation process. One commenter stated: “This proposed rule is a step in the right direction to streamline a tedious process in HUD multifamily and healthcare programs.” Commenters also suggested changes that they thought would further improve this process. The following are the significant comments raised by the commenters.
Whether HUD chooses to develop 2530 forms tailored for specific HUD transactions, the public should keep in mind that changes to the existing 2530 form or development of new previous participation forms must undergo the notice and comment process (a minimum of 90 days) required by the Paperwork Reduction Act (PRA).
In this final rule, the regulations have been revised to clarify that previous participation must include HUD programs but that the FHA Commissioner may request and consider previous participation in any Federal, State or local government program if the Commissioner determines that such information is reliably available and necessary in evaluating financial or operational risk. Further, the Commissioner may exclude any previous participation from the previous participation review process if the Commissioner determines that such information is not relevant or cannot be reliably gathered. This regulatory structure allows greater specificity to be set forth in forthcoming guidance and to evolve as housing programs and risks evolve. HUD notes that in order to request any such previous participation information, HUD must follow the PRA
Many commenters stated that the definition of “Controlling Participant” in the proposed rule was too broad and needed further clarity and specificity. Commenters offered suggestions on how Controlling Participant should be defined. Their suggestions are as follows:
In response to these comments, HUD has revised the language to clarify that unless members of a nonprofit board of directors are exercising day-to-day control over a Specified Capacity or a Covered Project, they need not submit for previous participation review. HUD does not believe the same clarity can be achieved through regulation with respect to REITs or public companies, nor does HUD believe that any regulation can keep pace with the ever-changing corporate organizational conventions. Therefore, HUD clarifies in the Processing Guide the requirements for REITs and public companies. The Processing Guide allows HUD to adhere to the concept expressed in the regulations that those individuals and entities that exercise control over a Specified Capacity and Covered Project are subject to previous participation review.
• Any passive investor (
• Any publicly-traded corporation, REIT, or other entity that is listed on any exchange regularly reported in the Wall Street Journal, provided that such entity is not on the GSA List; and
• Any entity subject to regulatory oversight by the Securities Exchange Commission (SEC), the Federal Trade Commission (FTC), the Office of the Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation (FDIC) and/or the Federal Reserve Board (FRB), provided that such entity is not on the GSA List.
• Directors of nonprofit boards, including PHA boards, who have no day-to-day responsibility or authority. Commenters stated that PHA and nonprofit boards typically consist of volunteers, and for PHAs, often at least one public housing resident.
A commenter stated that the reference to “federal programs” in the second sentence of § 200.220(a)(1) should be limited to the programs administered by HUD's Multifamily Housing Office.
Another commenter stated that while previous performance in Federal programs is relevant for determination of risk, the proposed language allows for too detailed a review for the purposes of the regulations. The commenter specifically stated the language includes financial and operational performance in non-federal environments and general business practices. The commenter stated that § 200.220(a) should be changed as follows: “The Commissioner's review of a Controlling Participant's previous participation shall include previous financial and operational performance in federal programs that may indicate a financial or operating risk in approving the Controlling Participant's participation in the subject Triggering Event. The Commissioner's review shall consider previous performance in accordance with HUD statutes, regulations and program requirements; and other factors that indicate that the Controlling Participant could not be expected to operate the project in a manner consistent with furthering the HUD's purposes.
Similar to comments that commenters made on the proposed rule, commenters commended HUD for the additional changes proposed in the Supplemental Notice and Processing Guide, but recommended further changes. A few commenters sought more specificity and clarity. The signature issues raised by the commenters are as follows:
In contrast to this commenter, a few commenters stated that the proposed Processing Guide needed additional detail and specificity. The commenters stated that the Processing Guide provide HUD too much discretion to identify Controlling Participants. The commenters stated that this lack of clarity adds complexity and significant time for both HUD staff and industry applicants in reviewing organization documents, evaluating the role of executive management positions and debating the issue of “control.” The commenters asked that HUD re-issue the proposed rule and Processing Guide for additional public comment. Another commenter similarly stated that because the proposed regulations and Processing Guide are interdependent policy documents, and HUD should re-issue the proposed rule concurrently with the Processing Guide and provide the public with an additional 60-day opportunity to comment on the complete set of policies and procedures in order to provide greater transparency and commitment to the regulatory process.
However, HUD agrees great clarity where possible is beneficial. HUD has clarified in the Processing Guide that it is the lender's (in FHA-insured transactions) and applicant's responsibility the first instance to make the determination in accordance with HUD guidance of who is a Controlling Participant. HUD has also clarified that once HUD provides final approval for a Triggering Event, HUD will not re-open the question of who is a Controlling Participant. Finally, HUD has revised the Processing Guide to clarify some of the provisions that other comments indicated were ambiguous.
Another commenter urged HUD to refrain from placing automatic system flags. The commenter stated that APPS generates unnecessary automatic flags, which the participant must then go to the trouble of having them removed. The commenter stated, for example, one member reported multiple problems with automatic flags after properties are refinanced and sold to a newly created entity. The commenter stated that according to one of its members, the participant cannot file financial statements into HUD's Financial Assessment Subsystem—Multifamily Housing (FASSUB) until an audit template is ready in the Integrated Real Estate Management System (iREMS).
Two commenters similarly urged HUD to modify the inflexibility of the duration of Tier 2 Flags. The commenters stated that resolution of flags is an important tool for HUD when negotiating settlement of disputes between owners and HUD, which will be lost if HUD cannot settle a matter and lift a Tier 2 Flag. The commenters stated, for example, assertion of audit findings by the Office of Inspector General, or by FASS may be contested by the Owner, but will nevertheless result in a Tier 2 Flag. The commenters stated that in order to resolve the audit findings, without resorting to litigation by HUD or the Owner, HUD should be free to resolve the Flag issue and remove the flag, without waiting out the five-year period.
Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where
This rule responds to the direction of Executive Order 13563 to reduce burden. As discussed in this preamble, HUD stakeholders have long complained about the previous participation process, and HUD has offered measures over the past to improve this process. However, these measures were not successful in providing a significant overhaul of the previous participation review process sufficient to remedy the common complaints. HUD believes that this final rule and accompanying Processing Guide strikes the appropriate balance between allowing HUD to effectively assess the suitability of applicants to participate in HUD's multifamily housing and healthcare programs, while interjecting sufficient flexibility into the process in order to remove a one-size-fits-all review process. Such a balance best allows HUD to make determinations of suitability in order to accurately access risk.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
As has been discussed in this preamble, this rule streamlines HUD's previous participation review process, responding to longstanding complaints by HUD participants that this is an overly burdensome process. The changes made by this final rule allow HUD to better consider the differences of any applicant and tailor requested information to that applicant, including whether the applicant is a small entity. For these reasons, HUD has determined that this rule would not have a significant economic impact on a substantial number of small entities.
This rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern, or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Order. This rule does not have federalism implications and would not impose substantial direct compliance costs on state and local governments nor preempts state law within the meaning of the Order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This rule does not impose any federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of UMRA.
The information collection requirements contained in this rule have been submitted to and approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned the following OMB control numbers—2502-0118 and 2502-0605
Administrative practice and procedure, Claims, Equal employment opportunity, Fair housing, Housing standards, Lead poisoning, Loan programs-housing and community development, Mortgage insurance, Organization and functions (Government agencies), Penalties, Reporting and recordkeeping requirements, Social security, Unemployment compensation, Wages.
Accordingly, for the reasons stated in the preamble above, and in accordance with HUD's authority under 42 U.S.C. 3535(d), HUD amends 24 CFR part 200 as follows
12 U.S.C. 1702-1715z-21; 42 U.S.C. 3535(d).
(a)
(b)
As used in this subpart:
The following types of multifamily and healthcare projects are Covered Projects subject to the requirements of this subpart, provided however that single family projects are excluded from the definition of Covered Projects:
(a)
(b)
(c)
(d)
(e)
(1) Interest reduction payments under section 236 of the National Housing Act (12 U.S.C. 1715z-1);
(2) Rental Assistance Payments under section 236 of the National Housing Act (12 U.S.C. 1715z-1);
(3) Rent Supplement payments under section 101 of the Housing and Urban Development Act of 1965 (12 U.S.C. 1701s); or
(4) Project-based housing assistance payment contracts under section 8 of the United States Housing Act of 1937 (42 U.S.C. 1437f) administered by HUD's Office of Housing.
(a)
(1) An owner of a Covered Project;
(2) A borrower of a loan financing a Covered Project;
(3) A management agent;
(4) An operator (in connection with healthcare projects insured under the following section of the National Housing Act: Section 232 (12 U.S.C. 1715w) and section 242 (12 U.S.C. 1715z-7));
(5) A master tenant (in connection with any multifamily housing project insured under the National Housing Act (12 U.S.C. 1701
(6) A general contractor; and
(7) In connection with a hospital project insured under section 242 of the National Housing Act (12 U.S.C. 1715z-7), a construction manager;
(b)
(1) Individuals or entities with the ability to direct the day-to-day operations of a Specified Capacity or a Covered Project;
(2) Individuals or entities that own at least 25 percent of an entity that is a Specified Capacity;
(3) Individuals or entities with the ability to direct the entity to enter into agreements relating to the Triggering Event that necessitates review of Previous Participation, including without limitation individuals or entities that own at least 25 percent of entities determined to control an entity that is a Specified Capacity; and
(4) In connection with a hospital project insured under section 242 of the National Housing Act (12 U.S.C. 1715z-7), members of a hospital Board of Directors (or similar body) and executive management (such as the Chief Executive Officer and Chief Financial Officer) that HUD determines to have control over the finances or operation of a Covered Project.
(c)
(1) Passive investors and investor entities with limited liability in Covered Projects benefiting from tax credits, including but not limited to low-income housing tax credits pursuant to section 42 of title 26 of the United States Code, whether such investors are syndicators, direct investors or investors in such syndicators and/or investors;
(2) Individuals or entities that do not exercise financial or operational control over the Covered Project, a Specified Capacity or another Controlling Participant;
(3) Unless determined by HUD to exercise day-to-day control over the
(4) Mortgagees acting in their capacity as such; and
(5) Public housing agencies (PHAs).
(a) Each of the following is a Triggering Event that may subject a Controlling Participant to Previous Participation review under § 200.220:
(1) An application for FHA mortgage insurance;
(2) An application for funds provided by HUD pursuant to a program administered by HUD's Office of Housing, such as but not limited to supplemental loans;
(3) A request to change any Controlling Participant for which HUD consent is required with respect to a Covered Project; or
(4) A request for consent to an assignment of a housing assistance payment contract under section 8 of the United States Housing Act of 1937 or of another contract pursuant to which a Controlling Participant will receive funds in connection with a Covered Project.
(b) The Commissioner may also require a review of a potential owner's Previous Participation in connection with a loan sale or other form of property disposition, including foreclosure sale. Notwithstanding anything contained in the regulations in this subpart to the contrary, any such review shall be in accordance with the terms, conditions, provisions and other requirements set forth by the Commissioner in connection with such loan sale or property disposition which may differ, in whole or in part, from the regulations in this subpart.
(a)
(2) The Commissioner will not review Previous Participation for interests acquired by inheritance or by court decree.
(3) In connection with the submittal of an application for any Triggering Event, applicants shall identify the Controlling Participants and, to the extent requested by HUD, make available to HUD the Controlling Participant's Previous Participation in Covered Projects.
(b)
(2) The Commissioner shall provide notice of the determination to the Controlling Participant including the reasons for disapproval or limitation. The Commissioner may provide notice of the determination to other parties as well, such the FHA-approved lender in the transaction.
(c)
(2) The Commissioner may disapprove a Controlling Participant if the Commissioner determines:
(i) The Controlling Participant is materially restricted, including voluntarily, from doing business with HUD (other than the restrictions listed in paragraph (c)(1) of this section) or any other governmental department or agency if the Commissioner determines that such restriction demonstrates a significant risk to proceeding with the Triggering Event; or
(ii) The Controlling Participant's record of Previous Participation reveals significant risk to proceeding with the Triggering Event.
(d)
(1) Condition or limit the Controlling Participant's participation;
(2) Temporarily withhold issuing a determination in order to gather more necessary information; or
(3) Require the Controlling Participant to remedy or mitigate outstanding violations of HUD requirements to the Commissioner's satisfaction in order to participate in the Triggering Event.
(a) Where participation in a Triggering Event has been disapproved, otherwise limited or conditioned because of Previous Participation review, the Controlling Participant may request reconsideration of such determination by a review committee or reviewing officer as established by the Commissioner. Reconsideration decisions shall not be rendered by the same individual who rendered the initial review.
(b) The Controlling Participant shall submit requests for such reconsideration in writing within 30 days of receipt of the Commissioner's notice of the determination under § 200.220.
(c) The review committee or reviewing officer shall schedule a review of such requests for reconsideration. The Controlling Participant shall be provided written notification of such a review; such notice shall provide at least 7 business days advanced notice of the reconsideration. The Controlling Participant shall be provided the opportunity to submit such supporting materials as the Controlling Participant desires or as the review committee or reviewing officer requests.
(d) Before making its decision, the review committee or reviewing officer will analyze the reasons for the decision(s) for which reconsideration is being requested, as well as the documents and arguments presented by the Controlling Participant. The review committee or reviewing officer may affirm, modify, or reverse the initial decision. Upon making its decision, the review committee or reviewing officer will provide written notice of its determination to the Controlling Participant setting forth the reasons for the determination(s).
The following appendix will not appear in the Code of Federal Regulations.
This Processing Guide (Guide) supplements HUD's Previous Participation Review regulations in 24 CFR part 200, subpart H. The Guide defines Controlling Participants for previous participation review, new flag approval, and rejection guidance and flag protocols in federal programs of certain participants seeking to take part in multifamily housing and healthcare programs administered by HUD's Office of Housing. The Guide aids in clarifying and simplifying the process by which HUD reviews previous participation of participants that have decision making authority over their projects as one component of HUD's responsibility to assess financial and operational risk to projects in these programs.
Pursuant to 24 CFR part 200, subpart H, HUD will not make substantial changes to this Guide without providing a 30-day notice and an opportunity to comment to the public. However, HUD notes that many titles of HUD officials and other contact information are noted in this Guide for many purposes. By way of illustration and not limitation, HUD may update any reference to titles, email addresses, Web sites or other information regarding HUD officials in this Guide (whether such update is necessary because of changes to titles, responsibilities, personnel, reorganization or for any other reason) without providing notice and an opportunity for comment. HUD may make other non-substantial changes made to this Guide without notice and comment.
This Guide updates and clarifies previous procedures and supersedes outstanding policy and guidance concerning previous participation review found in previous Housing notices and in the following: Multifamily Accelerated Processing (MAP) Guide Handbook 4430.G, Multifamily Asset Management and Project Servicing Handbook 4350.1, Healthcare Mortgage Insurance Program Handbook 4232.1, and Mortgage Insurance for Hospitals 4615.1. HUD will incorporate elements of this Guide into these handbooks. In addition, the Guide supersedes the Previous Participation (HUD-2530) Handbook 4065.1.
This Guide applies to Covered Projects administered by the Office of Multifamily Housing and the Office of Healthcare Programs, as listed in HUD's regulations in 24 CFR part 200 subpart H:
a.
b.
c.
d.
e.
• Interest reduction payments under section 236 of the National Housing Act (12 U.S.C. 1715z-1);
• Rental Assistance Payments under section 236 of the National Housing Act (12 U.S.C. 1715z-1);
• Rent Supplement payments under section 101 of the Housing and Urban Development Act of 1965 (12 U.S.C. 1701s); or
• Project-based rental assistance pursuant to housing assistance payment contracts under Section 8 of the Housing Act of 1937. This includes projects converting to PBRA assistance pursuant to the Rental Assistance Demonstration (RAD). This does not include project-based assistance provided under the Housing Choice Voucher program administered by HUD's Office of Public and Indian Housing or project-based assistance provided under the McKinney Act, administered by HUD's Office of Community Planning and Development.
For the Sections 223(a)(7), 223(f), 241(a), 232(i) and 223(d) programs Controlling Participants are only subject to Previous Participation review if they were not previously approved to participate in that project (provided they have not changed roles in the project without prior approval).
To the extent the program requirements (including without limitation any contractual documents) governing a Covered Project require HUD consent for a change in a Specified Capacity or other Controlling Participant, consent to such change is subject to Previous Participation review.
Program offices may waive any portion of this Guide that is not a regulatory requirement, subject to an appropriate justification, as required by HUD for all waivers. HUD expects waivers to be rare and in response to unique circumstances meeting the intent of HUD's Previous Participation review regulations.
The sections below outline who is subject to a Previous Participation review; the submission requirements and review procedures; considerations for approval and rejection; and the participant flagging process.
Controlling Participants are those entities and individuals (i) serving as a Specified Capacity with respect to a Covered Project and (ii) the entities and individuals in control of the Specified Capacities. At least one natural person must be identified as a Controlling Participant for each Specified Capacity. The chart below shows the Specified Capacities for the listed programs.
1. Entities and individuals owning, directly or indirectly, 25% or more of a Specified Capacity.
2. The controlling owners (entities and/or individuals) of the entity that controls the Specified Capacity, these include individuals or entities with the ability to direct the Specified Capacity to enter into agreements relating to the Triggering Event, including without limitation individuals or entities that own at least 25 percent of entities determined to control an entity that is a Specified Capacity.
3. Any officers and other equivalent executive management (including Executive Director and other similar capacities) of the Specified Capacity or Controlling Participant who are directly responsible to the board of directors (or equivalent oversight body) and who have the ability to prevent or resolve violations or circumstances giving rise to flags related to the Covered Project.
4. Managers or managing members of Limited Liability Companies (LLCs).
5. General partners of limited partnerships, including “administrative” general partners or other general partners if they exercise day-to-day control over the entity.
6. Partners in a general partnership.
7. Executive Director (or equivalent position) of a non-profit corporation.
8. With respect to non-profit Borrowers under the Section 242 program, the executive management (Chief Executive Officer, Chief Financial Officer, and Chief Operating Officer, or equivalents) of the Borrower and the members of the Board of Directors that HUD determines have control over the finances or operation of the hospital (typically the President, Vice President, Treasurer, and Chairman of the Finance Committee, or equivalents).
9. Members of a for-profit corporation's Board of Directors who are also officers of the corporation.
10. Controlling stockholders of a corporation. A controlling stockholder is the holder of sufficient voting stock or shares in a corporation to prevail in any stockholders' motion. In most cases the controlling stockholder will be subject to the previous participation filing requirements of those owning at least 25% of a Specified Capacity or Controlling Participant. However, this listing is meant to trigger filing requirements for shareholders who may technically evade the 25% ownership filing requirement but exercise financial or operational control over the Specified Capacity.
11. Trustees of a trust.
12. For real estate investment trusts (REITs), the REIT itself, the chief executive officer (or equivalent position) and all company officers (except those officers determined by HUD not to exercise day-to-day control over the REIT, the Specified Capacity or the Covered Project) must file.
13. For insured projects, if applicable, the person (people) and/or entity (entities) to be listed on the Regulatory Agreement Non-Recourse Debt section.
14. Any other person or entity determined by HUD to exercise day-to-day, financial or operational control over a Specified Capacity. While it is unlikely, this may include any officers, directors or members of an executive management team who would otherwise not be required to make a submission (even of shell entities or other entities that may fall into the exclusions below), if such person is exercising control over the Specified Capacity. This listing is meant to capture those rare individuals who structure their participation so as to technically circumvent HUD requirements but who de facto exercise control over the Specified Capacity. HUD believes that the individuals and entities described in the list above accurately account for the Controlling Participants in the vast majority of cases and that invoking an additional submission through this catch-all listing should be rare.
If the applicant or Mortgagee has any reason to believe that any Controlling Participant is not of sound mind or body or is otherwise incapacitated, such information must be disclosed to HUD to review and determine whether another individual is acting as a Controlling Participant.
1.
2.
For example, if a Borrower (“Borrower LLC”) has a managing member (“Managing Member”) that is a joint venture partnership of two entities (“Partner 1” and “Partner 2”) and day-to-day control of Managing Member is exercised by Partner 1, then Partner 1 is the Controlling Participant of the Borrower. In this example, neither Managing Member nor Partner 2 are actually exercising control and are excluded. If Partner 1 is itself a shell LLC, with three members, then the individual(s) or entity(ies) that exercise day-to-day control of Partner 1 would be the Controlling Participant(s). If day-to-day control of Partner 1 is exercised by Member A, then Partner 1 would be excluded and Member A would be the Controlling Participant. If the organizational chart reflects this arrangement and unless additional information or special circumstances warrant further inquiry, HUD will accept Member A's certification that it is the Controlling Participant and will not require an examination of the various entities' organizational documents to confirm that Managing Member and Partner 1 are excluded shell entities.
3.
4.
5.
In the event HUD requests an officer who has not provided a Previous Participation Review submission to provide a submission, HUD shall accept certification from the officer that (s)he has limited involvement in the Covered Project, does not exercise operational or financial control over the Covered Project and does not have the ability to prevent or resolve violations or circumstances giving rise to flags related to the Covered Project (as listed below in Section G, “Flags”).
6.
7.
8.
9.
10.
11.
12.
An organization chart must be submitted for each Specified Capacity and for any entity within the organization chart if requested by HUD. Organization charts are visual representations of the ownership structure of an organization. Organizational charts are already required for the underwriting purposes as a part of the application or request for most Triggering Events. This Guide clarifies that such organizational charts shall also be submitted with the Previous Participation review submissions for the purposes of Previous Participation review. If the application or request for a Triggering Event does not otherwise require submission of organizational charts, this Guide clarifies that such organizational charts are required for purposes of Previous Participation review. All organization charts submitted in connection with a Triggering Event are considered part of the application for HUD review and subject to the certifications stating that the application is true and complete. The organization chart must be clear enough so that a person unfamiliar with the Covered Project and the entities involved can understand the ownership and control structure. The organization chart must comply with the following guidelines:
1. Clearly show all tiers of the ownership structure, including the members or owners of the entities listed.
2. Show all participants, not just those who the Lender or Applicant considers to be principals or Controlling Participants. HUD may accept an organizational chart without a full listing of all participants if HUD determines that such a listing would be unduly burdensome.
3. Show percentages of ownership and role in the entity (
4. List at least one natural person, not just entities; provided, however, tax credit investors and other investors that are not exercising day-to-day control are not required to list a natural person.
5. Provided that nothing in this Guide is meant to alter any underwriting requirements, for purposes of Previous Participation review, with respect to tax credit investors and other investors that are not exercising day-to-day control over a Specified Capacity or Controlling Participant, only the investor entity and its percentage ownership in the Specified Capacity need be shown; it is not necessary to show the members, partners or owners of the investor entity. HUD notes that additional information relating to investors may be required separately through underwriting review.
6. Each Specified Capacity must be shown on a separate organization chart (
7. With respect to each entity on the organization chart except wholly owned entities, tax credit investors and other investors that are not exercising day-to-day control, the executive management teams (for example, all senior officers such as CEO, CFO, President, Executive Director, etc., but not department heads or lower level management) and any members of a Board of Directors must be disclosed to HUD even if such individuals are not considered to be Controlling Participants and do not need to file Previous Participation review submissions. Such information must be updated if it changes prior to the Triggering Event. HUD may accept an organizational chart without a full listing of an entity's Board of Directors if HUD determines that such a listing would be unduly burdensome.
(1) To fulfill the Previous Participation review requirements, applicable controlling participants must file a Previous Participation Certification. The Previous Participation review shall occur concurrently with the review of the application for mortgage insurance or other request for approval of a Triggering Event. Participants may utilize either the electronic Active Partners Performance System (APPS)
The following chart indicates which filing options are available for which programs.
(2) It is the participant's
(3) As part of the Previous Participation Certification, participants are only required to list all projects which they have participated in over the previous 10-year period. However, to the extent HUD has information that precedes the previous 10 years, HUD reserves the right to review and consider a participant's Previous Participation in federal projects beyond the 10-year period when determining whether to approve participation in a Triggering Event. Controlling Participants must include all previous participation from the past 10 years in: (a) Covered Projects, (b) housing projects with current flags under the U.S. Department of Agriculture's previous participation review system and (c) any other housing project participating in a federal, state or local or government program if during the Controlling Participant's participation in the housing project (i) the housing project was foreclosed upon; (ii) the housing project was transferred by a deed in lieu of foreclosure; or (iii) an event of default, or similarly termed event, was declared and remained after any applicable notice and cure periods against the housing project or the Controlling Participant pursuant to the government program's project documents.
If there are no flags in the system and the applicant is able to make all the certifications or HUD has approved any reason as to why a certification cannot be made, the Previous Participation review is considered complete and the submission will be approved.
If there are current flags in the system, HUD staff will review:
• The comments in the system related to the flag.
• The lender or participant's explanation of the flag and any mitigation of risk associated with the flag.
• Whether flags need to be resolved.
• The flag history in the system to assess patterns of misconduct and risk to the Department.
Based upon this review, including review of the certifications, HUD will determine whether or not the Controlling Participant poses an unacceptable Risk to the Covered Project, in accordance with the definition in 24 CFR 200.212, namely whether the Controlling Participant could be expected to participate in the Covered Project in a manner consistent with furthering the Department's purposes. Based on this determination, HUD may approve, disapprove, limit or otherwise condition the continued participation of the Controlling Participant in the Triggering Event.
Disapproval is only appropriate in the relatively few cases where the risks present cannot be mitigated. HUD will disapprove a Controlling Participant if the Controlling Participant is suspended, debarred or subject to other restriction pursuant to 2 CFR part 180 or 2 CFR part 2424. HUD may disapprove a Controlling Participant if HUD determines: (i) The Controlling Participant is materially restricted, including voluntarily, from doing business with HUD (other than the restrictions listed above) or any other department or agency of the federal government if the Commissioner determines that such restriction demonstrates a significant risk to proceeding with the Triggering Event; or (ii) HUD determines that the Controlling Participant's record of Previous Participation reveals significant risk to proceeding with the Triggering Event that cannot be adequately mitigated.
In lieu of disapproval, HUD may (1) condition or limit the Controlling Participant's participation; (2) temporarily withhold issuing a determination in order to gather more necessary information; or (3) require the Controlling Participant to remedy or mitigate outstanding violations of HUD requirements to the Commissioner's satisfaction in order to participate in the Triggering Event. A remedy or mitigation may include resolving any underlying issues that caused the existing flags or other measures that demonstrate to HUD's satisfaction that that the Controlling Participant could be expected to participate in the Covered Project in a manner consistent with furthering the Department's purpose of supporting and providing decent, safe and affordable housing for the public.
In accordance with these provisions, if a HUD official approves a participant's participation while a flag remains outstanding, the determining HUD official shall annotate the APPS system with a
If a recommendation for disapproval is proposed, HUD staff will notify the participant, and, in the case of an FHA-insured loan, the Lender, in advance of the recommendation, which notification shall include the basis for the anticipated disapproval and, if known, what information is needed to resolve HUD's concerns. This notification will allow an opportunity for the participant to provide additional arguments for HUD's consideration to preserve processing efficiency and cut down on requests for reconsideration.
Participants have the right to request a reconsideration of HUD decisions disapproving participants. The Controlling Participant shall submit requests for such reconsideration in writing within 30 days of receipt of HUD's notice of disapproval. The review committee or reviewing officer shall schedule a review of such requests for reconsideration. The Controlling Participant shall be provided written notification of such a review at least 7 business days in advance of the reconsideration. The reconsideration shall not occur prior to the date provided to the Controlling Participant so that the Controlling Participant shall be provided the opportunity to submit such supporting materials as the Controlling Participant desires or as the review committee or reviewing officer requests. However, reconsideration need not be conducted through a formal meeting and the Controlling Participant may not necessarily have an opportunity to appear before the reviewing official in person.
Before making its decision, the review committee or reviewing officer will analyze the reasons for the decision(s) for which reconsideration is being requested, as well as the documents and arguments presented by the Controlling Participant. The review committee or reviewing officer may affirm, modify, or reverse the initial decision. Upon making its decision, the review committee or reviewing officer will provide written notice of its determination to the Controlling Participant setting forth the reasons for the determination(s). Reconsideration decisions shall not be rendered by the same individual who rendered the initial review. Please see the below table for the officials responsible for rendering reconsideration decisions applicable to each program area. The decision rendered by the officials below is final agency action.
HUD utilizes flags in the APPS system as a way to assess risk associated with participants in Office of Multifamily Housing and Office of Healthcare Programs projects. A flag does not automatically exclude an applicant from participation in HUD's programs; however, flags are considered risk factors that require appropriate mitigation, where possible. Flags are to be a meaningful representation of risk, and therefore, they should not be placed for minor infractions that do not pose a risk to HUD. HUD will
1.
For the Office of Multifamily Housing & Assisted Housing Oversight Division, Tier 1 and 2 manual flags must be reviewed by the Branch Chief prior to placement. For the Office of Healthcare Programs, all manual flags must be reviewed by the Director of Asset Management prior to placement. The Branch Chief and Director of Asset Management, respectively, shall ensure that their office's Account Executive notifies the flagged participant of the flag placement and provides adequate comments in the APPS system detailing the reason for the flag.
For any flag, if the Branch Chief or Director of Asset Management has reason to believe that placement of the flag is inappropriate, the Branch Chief and/or Director of Asset Management may approve removal of the flag or no placement of the flag in the first place. For example, HUD is aware that currently, when an owner purchases a portfolio, HUD's Financial Assessment of Multifamily Housing (FASS) system may have trouble accepting the financial statement submission of the new owner. In this circumstance, the system may perceive the new owner as having multiple failures to file financial statements because each property in the portfolio may be perceived as missing a financial statement. In this circumstance, the system may indicate that a Tier 2 flag would be appropriate, but obviously no flag is warranted. In this circumstance, the Account Executive shall not place a flag on the Controlling Participant's record or shall remove any such unwarranted flag relating to such circumstance. The Branch Chiefs and Directors of Asset Management have authority to make similar determinations in other circumstances.
2.
Tier 1 flags warrant permanent consideration when reviewing Controlling Participants for their participation in Triggering Events. Except that HUD will disapprove a Controlling Participant if the Controlling Participant is currently suspended, debarred or subject to other restriction pursuant to 2 CFR part 180 or 2 CFR part 2424, participants with Tier 1 flags may still participate in a Triggering Event if the risk posed by the flag has been appropriately mitigated.
Tier 2 flags warrant consideration for an extended period of time when reviewing Controlling Participants for their participation in Triggering Events, even after the underlying reason for the flag is resolved. A “Repeated” Offense means that a Controlling Participant has had three or more instances of the violation in a seven-year period.
Tier 3 flags relate to a single and/or less serious incident of non-compliance and can be resolved and removed. Participants with Tier 3 flags shall be approved, subject to satisfaction of the conditions listed below prior to or at the closing of the Triggering Event transaction. In the case of FHA Insurance, any conditions not met by the issuance of the Firm Commitment shall be special conditions to the Firm Commitment.
3.
Notwithstanding anything else in this Guide, for any flag, if the Branch Chief or Director of Asset Management determines in writing that retention of the flag for the time periods listed above is inappropriate and unduly burdensome on the Controlling Participant or HUD, the Branch Chief and/or Director of Asset Management may waive this Guide's requirements with respect to duration of the flag and approve the flag's removal. In providing this determination, the Branch Chief or Director of Asset Management must consider any comments in the APPS system, including any comments indicating why the flag is warranted. If comment in the APPS system clearly describe that the flag is warranted and set out a justification for approval in forthcoming transactions despite the presence of the flag (as discussed in this Guide above), the flag may not be unduly burdensome and retention of the flag may be warranted. If, however, the Branch Chief or Director of Asset Management determines that retention of the flag is unwarranted or otherwise inappropriate and unduly burdensome on the Controlling Participant, the Branch Chief or Director of Asset Management shall indicate the basis for such determination and direct that the flag be removed.
HUD will not make any significant changes to the Guide without first offering advance notice and the opportunity for comment for a period of not less than 30 days.
Technical Assistance can be found on the HUD Web site at:
Questions can be directed to:
The following certification is to be submitted as part of the FHA loan application from each entity which claims to be a limited liability investor.
I, [
I certify that [
a. Investing in [
b. A limited liability company, an investor corporation, an investor limited partnership, an investor limited liability limited partnership or other similar entity with limited liability; and
c. An investor with limited or no control over routine property operations or HUD regulatory and/or contract compliance, unless it should take control of the ownership entity or assume the operating responsibilities in the event of the default of the operating partner or upon specific events defined in the [
I further certify that should any of the facts or circumstances that support the certifications above change or the entity for which this certification is made withdraws from participation in the owner/mortgagor, I will notify HUD immediately in writing, providing full disclosure and explanation of the change(s).
Office of the Secretary, Department of the Interior.
Final rule.
This final rule establishes the Secretary of the Interior's (Secretary) administrative process for reestablishing a formal government-to-government relationship with the Native Hawaiian community to more effectively implement the special political and trust relationship that Congress established between that community and the United States. The rule does not attempt to reorganize a Native Hawaiian government or draft its constitution, nor does it dictate the form or structure of that government. Rather, the rule establishes an administrative procedure and criteria that the Secretary would use if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States. Consistent with the Federal policy of self-determination and self-governance for indigenous communities, the Native Hawaiian community itself would determine whether and how to reorganize its government.
This rule is effective November 14, 2016.
Jennifer Romero, Senior Advisor for Native Hawaiian Affairs, Office of the Secretary, 202-208-3100.
The final rule sets forth an administrative procedure and criteria that the Secretary would use if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States. The rule does not provide a process for reorganizing a Native Hawaiian government. The decision to reorganize a Native Hawaiian government and to establish a formal government-to-government relationship is for the Native Hawaiian community to make as an exercise of self-determination.
Congress already federally acknowledged or recognized the Native Hawaiian community by establishing a special political and trust relationship through over 150 enactments. This unique special political and trust relationship exists even though Native Hawaiians have not had an organized government since the overthrow of the Kingdom of Hawaii in 1893. Accordingly, this rule provides a process and criteria for reestablishing a formal government-to-government relationship that would enable a reorganized Native Hawaiian government to represent the Native Hawaiian community and conduct government-to-government relations with the United States under the Constitution and applicable Federal law. The term “formal government-to-government relationship” in this rule refers to the working relationship with the United States that will occur if the Native Hawaiian community reorganizes and submits a request consistent with the rule's criteria.
Importantly, the process set out in this rule is optional and Federal action will occur only upon an express, formal request from the reorganized Native Hawaiian government. The rule also provides a process for public comment on the request and a process for the Secretary to receive, evaluate, and act on the request.
The Native Hawaiian community has a unique legal relationship with the United States, as well as inherent sovereign authority that has not been abrogated or relinquished, as evidenced by Congress's consistent treatment of this community over an extended period of time. Over many decades, Congress enacted more than 150 statutes recognizing and implementing a special political and trust relationship with the Native Hawaiian community. “Recognition is a formal political act [that] permanently establishes a government-to-government relationship between the United States and the recognized tribe as a `domestic dependent nation,' and imposes on the government a fiduciary trust relationship to the tribe and its members. Recognition is also a constitutive act: It institutionalizes the tribe's quasi-sovereign status, along with all the powers accompanying that status such as the power to tax, and to establish a separate judiciary.”
A government-to-government relationship encompasses the political relationship between sovereigns and a working relationship between the officials of those two sovereigns. Although the Native Hawaiian community has been without a formal government for over a century, Congress recognized the continuity of the Native Hawaiian community through over 150 separate statutes, which ensures it has a special political and trust relationship with the United States. At the same time, a working relationship between government officials is absent. This rulemaking provides the Native Hawaiian community with an opportunity to have a working relationship, referred to as the “formal government-to-government relationship.” The Native Hawaiian community's current relationship with the United States has substantively all of the other attributes of a government-to-government relationship, and might be described as a “sovereign to sovereign” or “government to sovereign” relationship. It is important to note that a special political and trust relationship may continue to exist even without a formal government-to-government relationship.
Among other things, the more than 150 statutes that Congress has enacted over many decades create programs and services for members of the Native Hawaiian community that are in many respects analogous to, but separate from, the programs and services that Congress enacted for federally-recognized Indian tribes in the continental United States. But during this same period, the United States has not had a formal government-to-government relationship with Native Hawaiians because there has been no formal, organized Native Hawaiian government since 1893, when a United States officer, acting without authorization of the U.S. government, conspired with residents of Hawaii to
The United States has a unique political and trust relationship with federally-recognized tribes across the country, as set forth in the Constitution, treaties, statutes, Executive Orders, administrative regulations, and judicial precedent. The Federal Government's relationship with federally-recognized tribes includes a trust responsibility—a longstanding, paramount commitment to protect their unique rights and ensure their well-being, while respecting their inherent sovereignty. In recognition of that special commitment—and in fulfillment of the solemn obligations it entails—the United States, acting through the Department of the Interior, developed processes to help tribes in the continental United States establish mechanisms to conduct formal government-to-government relationships with the United States.
Strong Native governments are critical to tribes' exercising their inherent sovereign powers, preserving their culture, and sustaining prosperous and resilient Native American communities. It is especially true that, in the current era of tribal self-determination, formal government-to-government relationships between tribes and the United States are enormously beneficial not only to Native Americans but to
Native Hawaiians are the aboriginal, indigenous people who settled the Hawaiian archipelago as early as 300 A.D., exercised sovereignty over their island archipelago and, over time, founded the Kingdom of Hawaii.
Throughout the nineteenth century and until 1893, the United States “recognized the independence of the Hawaiian Nation,” “extended full and complete diplomatic recognition to the Hawaiian Government,” and “entered into several treaties with Hawaiian monarchs.” 42 U.S.C. 11701(6);
The Kingdom was overthrown in January 1893 by a “Committee of Safety” comprised of American and European sugar planters, descendants of missionaries, and financiers. S. Rep. No. 103-126, at 21 (1993). The Committee established a provisional government, which later declared itself to be the Republic of Hawaii, and the U.S. Minister to the Kingdom of Hawaii “immediately extended diplomatic recognition” to the provisional government “without the consent of Queen Liliuokalani or the Native Hawaiian people.”
The United States nevertheless annexed Hawaii “without the consent of or compensation to the indigenous people of Hawaii or their sovereign government who were thereby denied the mechanism for expression of their inherent sovereignty through self-government and self-determination.” Native Hawaiian Health Care Act, 42 U.S.C. 11701(11). The Republic of Hawaii ceded 1.8 million acres of land to the United States “without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government,” Apology Resolution at 1512, and Congress passed a joint resolution—the Newlands Resolution (also known as the Joint Resolution of Annexation)—annexing the islands in 1898.
Under the Newlands Resolution, the United States accepted the Republic of Hawaii's cession of “all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies,” and resolved that the Hawaiian Islands were “annexed as part of the territory of the United States” and became subject to the “sovereign dominion” of the United States. No consent to these terms was provided by the Kingdom of Hawaii; rather, the joint resolution “effectuated a transaction between the Republic of Hawaii and the United States” without direct relinquishment by the Native Hawaiian people of their claims to sovereignty as a people or over their national lands to the United States.
The Hawaiian Organic Act, enacted in 1900, established the Territory of Hawaii, extended the U.S. Constitution to the territory, placed ceded lands under United States control, and directed the use of proceeds from those lands to benefit the inhabitants of Hawaii. Act of Apr. 30, 1900, 31 Stat. 141 (Organic Act).
Hawaii was a U.S. territory for six decades prior to becoming a State, during which time the Hawaiian government's “English-mainly” policy of the late 1850s was replaced by the territorial government's policy of “English-only” and outright suppression of the Hawaiian language in public schools.
In a number of enactments, Congress expressly identified Native Hawaiians as “a distinct and unique indigenous people with a historical continuity to the original inhabitants of the Hawaiian archipelago,” Native Hawaiian Health Care Improvement Act, 42 U.S.C. 11701(1);
• Established special Native Hawaiian programs in the areas of health care, education, loans, and employment.
• Enacted statutes to study and preserve Native Hawaiian culture, language, and historical sites.
• Extended to the Native Hawaiian people many of “the same rights and privileges accorded to American Indian, Alaska Native, Eskimo, and Aleut communities” by classifying Native Hawaiians as “Native Americans” under numerous Federal statutes. Native Hawaiian Health Care Improvement Act, 42 U.S.C. 11701(19);
These more recent enactments followed Congress's enactment of the HHCA, a Federal law that designated tracts totaling approximately 200,000 acres on the different islands for exclusive homesteading by eligible Native Hawaiians. Act of July 9, 1921, 42 Stat. 108;
In 1938, Congress again exercised its trust responsibility by preserving Native Hawaiians' exclusive fishing rights in the Hawaii National Park. Act of June 20, 1938, ch. 530, sec. 3(a), 52 Stat. 784.
In 1959, as a condition of statehood, the Hawaii Admission Act contained two provisions expressly recognizing Native Hawaiians and requiring the State of Hawaii to manage lands for the benefit of the indigenous Native Hawaiian people. Act of March 18, 1959, 73 Stat. 4 (Admission Act). First, the Federal Government required the State to adopt the HHCA as a provision of its constitution, which effectively ensured continuity of the Hawaiian home lands program.
The Executive Branch also made findings and recommendations following a series of hearings and meetings with the Native Hawaiian community in 1999, when the U.S. Departments of the Interior and of Justice issued, “From Mauka to Makai: The River of Justice Must Flow Freely,” a report on the reconciliation process between the Federal Government and Native Hawaiians. The report found that “the injustices of the past have severely damaged the culture and general welfare of Native Hawaiians,” and that exercising self-determination over their own affairs would enable Native Hawaiians to “address their most pressing political, health, economic, social, and cultural needs.” Department of the Interior & Department of Justice,
Congress also found it significant that the State of Hawaii “recognizes the traditional language of the Native Hawaiian people as an official language of the State of Hawaii, which may be used as the language of instruction for all subjects and grades in the public school system,” and “promotes the study of the Hawaiian culture, language, and history by providing a Hawaiian education program and using community expertise as a suitable and essential means to further the program.” Native Hawaiian Education Act, 20 U.S.C. 7512(21);
Congress consistently enacted programs and services expressly and specifically for the Native Hawaiian community that are in many respects analogous to, but separate from, the programs and services that Congress enacted for federally-recognized tribes in the continental United States. As Congress explained, it “does not extend services to Native Hawaiians because of their race, but because of their unique status as the indigenous peoples of a once sovereign nation as to whom the United States has established a trust relationship.” Hawaiian Homelands Homeownership Act, 114 Stat. 2968 (2000). Thus, “the political status of Native Hawaiians is comparable to that of American Indians and Alaska Natives.” Native Hawaiian Education Act, 20 U.S.C. 7512(12)(B), (D). Congress's treatment of Native Hawaiians flows from that political status of the Native Hawaiian community.
Congress, under its plenary authority over Indian affairs, repeatedly acknowledged its special relationship with the Native Hawaiian community since the overthrow of the Kingdom of Hawaii more than a century ago. Congress concluded that it has a trust obligation to Native Hawaiians in part because it bears responsibility for the overthrow of the Kingdom of Hawaii and suppression of Native Hawaiians' sovereignty over their land. But the Federal Government has not maintained a formal government-togovernment relationship with the Native Hawaiian community as an organized, sovereign entity. Reestablishing a formal government-to-government relationship with a reorganized Native Hawaiian sovereign government would facilitate Federal agencies' ability to implement the established relationship between the United States and the Native Hawaiian community through interaction with a single, representative governing entity. Doing so would strengthen the self-determination and self-governance of Native Hawaiians and facilitate the preservation of their language, customs, heritage, health, and welfare. This interaction is consistent with the United States government's broader policy of advancing Native communities and enhancing the implementation of Federal programs by implementing those programs in the context of a formal government-to-government relationship.
Consistent with the HHCA, which is the first Congressional enactment clearly recognizing the Native Hawaiian community's special relationship with the United States, Congress requires Federal agencies to consult with Native Hawaiians under several Federal statutes.
As discussed above, Native Hawaiians were active participants in the political life of the Kingdom of Hawaii, and this activity continued following the overthrow through coordinated resistance to annexation and a range of other organized forms of political and social organizations.
There are numerous additional examples of active engagement within the community on issues of self-determination and preservation of Native Hawaiian culture and traditions: Ka Lahui Hawaii, a Native Hawaiian self-governance initiative, which organized a constitutional convention resulting in a governing structure with elected officials and governing documents; the Hui Naauao Sovereignty and Self-Determination Community Education Project, a coalition of over 40 Native Hawaiian organizations that worked together to educate Native Hawaiians and the public about Native Hawaiian history and self-governance; the 1988 Native Hawaiian Sovereignty Conference, where a resolution on self-governance was adopted; the Hawaiian Sovereignty Elections Council, a State-funded entity, and its successor, Ha Hawaii, a nonprofit organization, which helped hold an election and convene
Against this backdrop of activity, Native Hawaiians and Native Hawaiian organizations asserted self-determination principles in court. Notably, in 2001, they brought suit challenging Native Hawaiians' exclusion from the Department's acknowledgment regulations (25 CFR part 83), which establish a uniform process for Federal acknowledgment of Indian tribes in the continental United States. The United States Court of Appeals for the Ninth Circuit upheld the geographic limitation in the part 83 regulations, concluding that there was a rational basis for the Department to distinguish between Native Hawaiians and tribes in the continental United States, given the unique history of Hawaii and the history of separate Congressional enactments regarding the two groups.
In recent years, Congress considered legislation to reorganize a single Native Hawaiian governing entity and reestablish a formal government-to-government relationship between it and the United States. In 2010, during the Second Session of the 111th Congress, nearly identical Native Hawaiian government reorganization bills were passed by the House of Representatives (H.R. 2314), reported out favorably by the Senate Committee on Indian Affairs (S. 1011), and strongly supported by the Executive Branch (S. 3945). In a letter to the Senate concerning S. 3945, the Secretary and the Attorney General stated: “Of the Nation's three major indigenous groups, Native Hawaiians—unlike American Indians and Alaska Natives—are the only one that currently lacks a government-to-government relationship with the United States. This bill provides Native Hawaiians a means by which to exercise the inherent rights to local self-government, self-determination, and economic self-sufficiency that other Native Americans enjoy.” 156 Cong. Rec. S10990, S10992 (Dec. 22, 2010).
The 2010 House and Senate bills provided that the Native Hawaiian government would have “the inherent powers and privileges of self-government of a native government under existing law,” including the inherent powers “to determine its own membership criteria [and] its own membership” and to negotiate and implement agreements with the United
The bills further acknowledged the existing “special political and legal relationship with the Native Hawaiian people” and established a process for “the Native Hawaiian people to exercise their inherent rights as a distinct, indigenous, native community to reorganize a single unified Native Hawaiian governing entity.” Some in Congress, however, expressed a preference for allowing the Native Hawaiian community to petition through the Department's Federal acknowledgment process.
In 2011, in Act 195, the State of Hawaii expressed its support for reorganizing a Native Hawaiian government that could then be federally recognized, while also providing for State recognition of the Native Hawaiian people as “the only indigenous, aboriginal, maoli people of Hawaii.” Haw. Rev. Stat. 10H-1 (2015);
Act 195 established the Native Hawaiian Roll Commission to oversee the process for compiling the roll of qualified Native Hawaiians. The Commission accepted registrations from individuals subject to verification of their Native Hawaiian ancestry while also “pre-certifying” for the roll individuals who were listed on any registry of Native Hawaiians maintained by OHA. Haw. Rev. Stat. 10H-3(a)(2)(A)(iii) (2015). On July 10, 2015, the Commission certified an initial list of more than 95,000 qualified Native Hawaiians, as defined by Haw. Rev. Stat. 10H-3 (2015). In addition to the initial list, the Commission certified supplemental lists of qualified Native Hawaiians and published a compilation of the certified lists online—the Kanaiolowalu.
In December 2014, a private nonprofit organization known as Nai Aupuni formed to support efforts to achieve Native Hawaiian self-determination. It originally planned to hold a month-long, vote-by-mail election of delegates to an Aha, a convention to consider paths for Native Hawaiian self-governance. Nai Aupuni limited voters and delegates to Native Hawaiians and it relied on the roll compiled by the Commission to identify Native Hawaiians. Delegate voting was to occur throughout the month of November 2015, but a lawsuit by six individuals seeking to halt the election delayed those efforts.
Plaintiffs alleged, among other things, violations of the Fifteenth Amendment to the U.S. Constitution and the Voting Rights Act. The district court ruled that plaintiffs did not demonstrate a likelihood of success on their claims and denied their motion for a preliminary injunction. The district court also found that the scheduled election was a private election “for delegates to a private convention, among a community of indigenous people for purposes of exploring self-determination, that will not—and cannot—result in any federal, state, or local laws or obligations by itself.” The court found it was “not a state election.” Plaintiffs appealed to the Ninth Circuit.
During the appeal, Nai Aupuni mailed the delegate ballots to certified voters and the voting for delegates began. Plaintiffs filed an urgent motion for an injunction pending appeal in the Ninth Circuit, which was denied. Plaintiffs then filed an emergency application for an injunction pending appellate review in the U.S. Supreme Court on November 23, 2015. Justice Kennedy enjoined the counting of ballots on November 27, 2015. Five days later, the Supreme Court, by a vote of 5 to 4, granted plaintiffs' request and enjoined the counting of ballots and the certifying of winners, pending the final disposition of the appeal in the Ninth Circuit.
After the Supreme Court enjoined the counting of the ballots, Nai Aupuni, citing concerns about the potential for years of delay in litigation, terminated the election and chose to never count the votes. Instead, Nai Aupuni invited all registered candidates participating in the election to participate in the Aha. During February 2016, nearly 130 Native Hawaiians took part in the Aha. On February 26, 2016, by a vote of 88-to-30 with one abstention (not all participants were present to vote), the Aha delegates voted to adopt a constitution.
The development of the roll of qualified Native Hawaiians, the effort to elect delegates to an Aha, and the adoption of a constitution by the Aha participants are all events independent of this rule. The purpose of the rule is to provide a process and criteria for reestablishing a formal government-to-government relationship that would enable a reorganized Native Hawaiian government to represent the Native Hawaiian community and conduct formal government-to-government relations with the United States under the Constitution and applicable Federal law. These events, however, provide context and significant evidence of the community's interest in reorganizing and reestablishing the formal government-to-government relationship that warrants the Secretary proceeding with this rulemaking process.
The final rule reflects the totality of the comments from the Advance Notice of Proposed Rulemaking (ANPRM) and the Notice of Proposed Rulemaking (NPRM or proposed rule) stages of the rulemaking process in which commenters urged the Department to promulgate a rule announcing a procedure and criteria by which the
In accordance with the wishes of the Native Hawaiian community as expressed in the comments on the ANPRM and the NPRM, the final rule does not involve the Federal Government in convening a constitutional convention, in drafting a constitution or other governing document for the Native Hawaiian government, in registering voters for purposes of ratifying that document, or in electing officers for that government. Any government reorganization would instead occur through a fair and inclusive community-driven process. The Federal Government's only role is deciding whether the request satisfies the rule's requirements, enabling the Secretary to reestablish a formal government-to-government relationship with the Native Hawaiian government.
Moreover, if a Native Hawaiian government reorganizes, it will be for that government to decide whether to seek to reestablish a formal government-to-government relationship with the United States. The process established by this rule is optional, and Federal action would occur only upon an express formal request from the reorganized Native Hawaiian government.
Congress has plenary power with respect to Indian affairs.
At the time of the Framers and in the nineteenth century, the terms “Indian,” “Indian affairs,” and “Indian tribes” were used to refer to the indigenous peoples not only of the Americas but also of the Caribbean and areas of the Pacific extending to Australia, New Zealand, and the Philippines.
Exercising this plenary power over Indian affairs, Congress delegated to the President the authority to “prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs, and for the settlement of the accounts of Indian affairs.” 25 U.S.C. 9. Congress charged the Secretary with directing, consistent with “such regulations as the President may prescribe,” the “management of all Indian affairs and of all matters arising out of Indian relations.” 25 U.S.C. 2. And Congress expressly authorized the Secretary to supervise “public business relating to . . . Indians,” 43 U.S.C. 1457(10), and to “prescribe regulations for the government of [the Department of the Interior] . . . [and for] the distribution and performance of its business,” 5 U.S.C. 301.
Congress recognized and ratified its delegation of authority to the Secretary to recognize self-governing Native American groups in the Federally Recognized Indian Tribe List Act of 1994, 108 Stat. 4791 (the List Act).
Over many decades and more than 150 statutes, Congress exercised its plenary power over Indian affairs to recognize that the Native Hawaiian community exists as an Indian tribe within the meaning of the Constitution. Through these statutes, the United States maintains a special political and trust relationship with the Native Hawaiian community. Congress also charged the Secretary with the duty to “effectuate and implement the special legal relationship between the Native Hawaiian people and the United States.” Act of January 23, 2004, sec. 148, 118 Stat. 445. The Secretary's promulgation of a process and criteria by which the United States may reestablish a formal government-to-government relationship with a reorganized Native Hawaiian government whose request satisfies the rule's requirements simply acknowledges and implements what Congress already made clear on more than 150 occasions, stretching back nearly a century.
Reestablishment of a formal government-to-government relationship would allow the United States to more effectively implement the special political and trust relationship that Congress established between the United States and the Native Hawaiian community and administer the Federal programs, services, and benefits that Congress created specifically for the Native Hawaiian community. As discussed above, Native Hawaiians are indigenous people of the United States who have retained inherent sovereignty and with whom Congress established a special political and trust relationship through a course of dealings over many decades. Congress repeatedly regulated the affairs of the Native Hawaiian community as it has with other Indian tribes, consistent with its authority under the Constitution. Hence, § 50.44(a) of the final rule states that upon reestablishment of the formal government-to-government relationship, the Native Hawaiian Governing Entity will have the same formal government-to-government relationship under the United States Constitution as the formal government-to-government relationship between the United States and a federally-recognized tribe in the continental United States (subject to the limitation on programs, services, and benefits appearing in § 50.44(d)), will have the same inherent sovereign governmental authorities, and will be subject to the same plenary authority of Congress,
As used in the rule, the term “HHCA Native Hawaiian” means a Native Hawaiian individual who meets the definition of “native Hawaiian” in HHCA sec. 201(a)(7), 42 Stat. 108 (1921), and thus has at least 50 percent Native Hawaiian ancestry, regardless of whether the individual resides on Hawaiian home lands, is an HHCA lessee, is on a wait list for an HHCA lease, or receives any benefits under the HHCA. Satisfying this definition generally requires that documentation demonstrating eligibility under HHCA sec. 201(a)(7) be available, such as official Department of Hawaiian Home Lands (DHHL) records or other State records.
The term “Native Hawaiian,” as used in the rule, means an individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii. This definition flows directly from multiple Acts of Congress.
In keeping with the framework created by Congress, the rule requires that, to reestablish a formal government-to-government relationship with the United States, a Native Hawaiian government must have a constitution or other governing document ratified both by a majority vote of Native Hawaiians and by a majority vote of those Native Hawaiians who qualify as HHCA Native Hawaiians. Thus, regardless of which Congressional definition is used, a majority of the voting members of the community with which Congress established a trust relationship through existing legislation will confirm their support for the Native Hawaiian government's structure and fundamental organic law.
In addition to this minimum affirmative-vote threshold, the rule creates a presumption of broad-based community support if the affirmative votes exceed 50,000, including affirmative votes from at least 15,000 HHCA Native Hawaiians. If a request meets these thresholds (50,000 and 15,000), the Secretary would be well justified in finding broad-based community support among Native Hawaiians.
The Department first reviewed Native Hawaiian voter turnout numbers in Hawaii for national and State elections and determined those numbers indicate broad-based participation within Hawaii in those elections. Actual voter data from 1998 supports this conclusion. There were just over 100,000 Native Hawaiian registered voters, nearly 65,000 of whom cast ballots in that off-year (
Second, to determine the turnout numbers today that indicate broad-based participation by the Native Hawaiian community, the Department estimated the percentage of Native Hawaiian voters within that general voter turnout. This estimate is based on actual voter data from 1988 to 1998 (
Third, the Department adjusted the estimate upward to account for out-of-State Native Hawaiian voters. These calculations result in a range of the number of anticipated Native Hawaiian voters, between 60,000 and 100,000, which the Department determined indicates broad-based community participation. The minimum required number of affirmative votes by Native Hawaiians is based on the low-end figure of this range,
Finally, the Department estimated the number of affirmative votes required of HHCA Native Hawaiians to demonstrate their broad-based support as 30 percent of the Native Hawaiian threshold, since HHCA Native Hawaiian adults are approximately 30 percent of the Native Hawaiian adult population, as discussed in more detail below.
Different approaches result in different estimates based on the broad range of evidence that the Department examined. The Department is reassured, however, by the fact that different methods produced roughly similar estimates. Weighing the available data, and applying different methods to analyze those data, the Department
Of course, turnout in a Native Hawaiian ratification referendum could diverge from Native Hawaiian turnout in a regular general election; but the year-to-year consistency of turnout figures from regular general elections in Hawaii suggests strong patterns that are likely to be replicated in a Native Hawaiian ratification referendum. Generally, more recent data are preferable to older data when projecting future turnout. If Native Hawaiian voter-turnout data for the most recent elections existed, the Department would have considered it. Because such data are not available, however, the Department analyzed the last six elections in which separate voter-turnout figures specifically for Native Hawaiians are available (1988 to 1998), as well as overall (Native Hawaiian and non-Native Hawaiian) voter-turnout figures for 1988 to 2014, the date of the most recent biennial general election. The figures are reproduced in the following table:
These figures show that overall turnout generally increased during the 1988-to-2014 period, although not always smoothly, and that Native Hawaiian turnout was doing the same during the 1988-to-1998 period, but at a somewhat faster rate than the overall turnout was increasing. These trends are consistent with census data showing Hawaii's population increasing and showing Hawaii's Native Hawaiian population increasing more rapidly than its non-Native population.
As the table above shows, overall turnout for this entire period (1988 to 2014) ranged from a low of 348,988 to a high of 456,064. The Native Hawaiian percentage of the overall turnout, for the years for which the table contains such data (1988 to 1998), ranged from a low of 13.1 percent in 1988 (48,238 divided by 368,567) to a high of 15.7 percent in 1998 (64,806 divided by 412,520). Since 1998, the fraction of the State's population that is Native Hawaiian grew by about 14.4 percent (this figure is derived by extrapolating from data showing Hawaii's Native Hawaiian population and Hawaii's total population in the 2000 and 2010 Federal decennial censuses).
Applying the population growth percentage of 14.4 to the voter-turnout numbers and then applying the Native Hawaiian voter-turnout percentage figures to those adjusted numbers results in a potential turnout of in-State Native Hawaiians that ranges from a low of about 52,300 (1.144 × 348,988 × 0.131= 52,300) to a high of about 81,913 (1.144 × 456,064 × 0.157 = 81,913). The Department concludes that this voter-turnout range would reflect broad-based community participation of in-State Native Hawaiians.
The rule also accounts for Native Hawaiians residing out-of-State who can participate in the ratification referendum. The out-of-State Native Hawaiian population is roughly comparable in size to the in-State Native Hawaiian population. Many Native Hawaiians living outside Hawaii remain strongly engaged with the Native Hawaiian community, as reflected in the substantial number of comments on this rule from Native Hawaiians residing out-of-State and by many Native Hawaiian civic organizations in the continental United States. Notwithstanding the number of comments, the Department concludes that the rate of participation of this population in a nation-building process is likely to be considerably lower than that of in-State Native Hawaiians.
One indicator of lower out-of-State Native Hawaiian voter turnout is the relatively low number of out-of-State Native Hawaiians on the Native Hawaiian Roll Commission's (NHRC's) Kanaiolowalu roll. Although the precise number of out-of-State Native Hawaiians on the roll is not public information, delegates were initially apportioned based on their percentage participation in the roll. Seven of the 40 delegates were apportioned to out-of-State Native Hawaiians, indicating that approximately 17.5 percent of the persons on the roll are from out-of-State, even though approximately half of all Native Hawaiians reside out-of-State. Based on these figures, the Department projected a significantly lower participation rate for out-of-State Native Hawaiians, and adjusted its in-State
Some data would point to a lower adjustment factor and some would point to a higher factor. For example, in 1996 when the Hawaiian Sovereignty Elections Council (HSEC) conducted its “Native Hawaiian Vote” election, which asked Native Hawaiians whether they wished to elect delegates to propose a Native Hawaiian government, only 3.2 percent of the more than 30,000 returned ballots came from out of State. The Department did not use this low percentage, however, as it appears to be attributable, at least in part, to the fact that the HSEC's list of potential voters contained relatively few Native Hawaiians living outside Hawaii.
Census data is another source of information about the potential participation in, or affiliation with, the Native Hawaiian community is the distribution of speakers of the Hawaiian language. Census data from 2009 to 2013 indicate that about 29 percent of U.S. residents who speak the Hawaiian language (7,595 out of 26,205) resided out-of-State. Although use of native language indicates strong ties to the community, the Department gave the language data less weight than information on actual participation in voting or other political or nation-building processes, because official efforts in Hawaii to suppress the Hawaiian language in the early twentieth century artificially alters the significance of this distribution.
In sum, the Department concludes that 20 percent is a reasonable adjustment factor given the limits of available data and the uncertainties with respect to participation of the out-of-State population. Applying that 20-percent adjustment factor for out-of-State voters to the in-State turnout estimate (52,300 to 81,913) results in a total range (in-State plus out-of-State) from about 62,760 to about 98,296. This range is an estimate, based on one specific methodology. This range—like the ranges produced by many other methodologies, employing a broad set of data—comports with the Department's conclusion that it is reasonable to expect that a Native Hawaiian ratification referendum would have a turnout somewhere in the range between 60,000 and 100,000, although a figure outside that range is possible.
A majority vote is necessary to support a governing document. With voter turnout of 60,000, a majority would require over 30,000 affirmative votes; with a voter turnout of 100,000, a majority would require over 50,000 affirmative votes. On this basis, the Department determined that 30,000 affirmative votes (where they represent a majority of those cast) is the rule's minimum threshold for potentially showing broad-based community support, and 50,000 affirmative votes (where they represent a majority of those cast) creates a presumption of such support.
Finally, for the HHCA Native Hawaiians, each figure in the rule is exactly 30-percent of the equivalent figure for Native Hawaiians. As explained in detail below, the Department's best estimate is that adult HHCA Native Hawaiians comprise approximately 30 percent of adult Native Hawaiians. This estimate is based not on DHHL records, but on the Department's best estimate of the respective populations of the two groups.
The derivation of this 30-percent figure requires some background. Justice Breyer's concurring opinion in
The conclusion that the median voter in an election held in 2016 (and for the next several years) is likely to fall into the 1965-to-1979 group is bolstered by data from the Hawaiian Sovereignty Elections Council's 1996 “Native Hawaiian Vote.” In that election, the median voters were in their low- to mid-40s, roughly the equivalent of a voter today who was born in 1971 or 1972.
Although the data from DHHL records are of limited relevance here, the rule's 9,000- and 15,000-affirmative-vote thresholds appear to be in harmony with key DHHL data. According to the 2014 DHHL Annual Report there were 9,838 leases of Hawaiian home lands as of June 30, 2014, of which 8,329 were residential (the remaining leases were for either agricultural or pastoral land). Therefore, it is reasonable to assume there are at least 8,329 families living in homestead communities throughout Hawaii, in addition to the nearly 28,000 individual applicants awaiting a homestead lease award. And a significant number of HHCA Native Hawaiians likely are neither living in homestead communities nor awaiting a homestead lease award. The DHHL data therefore are consistent with the Department's conclusion that it is reasonable to expect that a ratification referendum would have a turnout of HHCA Native Hawaiians somewhere in the range between 18,000 and 30,000, although a figure outside that range is possible. And to win a majority vote in that range would require over 9,000 (for a turnout of 18,000) to over 15,000 (for a turnout of 30,000) affirmative votes from HHCA Native Hawaiians. On this basis, the Department determined that 9,000 affirmative votes from HHCA Native Hawaiians (where they represent a majority of those cast) is the rule's minimum threshold for potentially showing broad-based community support and 15,000 affirmative votes from HHCA Native Hawaiians (where they represent a majority of those cast) creates a presumption of such support.
The governing document must also provide for the protection and preservation of the rights of HHCA beneficiaries. In addition, the governing document must protect and preserve the liberties, rights, and privileges of all persons affected by the Native Hawaiian government's exercise of governmental powers in accord with the Indian Civil Rights Act of 1968, as amended (25 U.S.C. 1301
As to concerns that a subsequent amendment to a governing document could impair the safeguards of § 50.13, Federal law provides both defined protections for HHCA beneficiaries and specific guarantees of individual civil rights, and such an amendment could not contravene applicable Federal law. The drafters of the governing document may also choose to include additional provisions constraining the amendment process; the Native Hawaiian community would decide that question in the process of drafting and ratifying that document.
The rule also clarifies that neither this rulemaking nor granting a request submitted under the rule would affect the rights of HHCA beneficiaries or the status of HHCA lands. Section 50.44(f) makes clear that reestablishment of the formal government-to-government relationship does not affect the title, jurisdiction, or status of Federal lands and property in Hawaii. This provision does not affect lands owned by the State or provisions of state law.
If a reorganized Native Hawaiian government decides to seek a formal government-to-government relationship with the United States, it must submit a written request to the Secretary, as provided in § 50.20. The request must include a written narrative with supporting documentation thoroughly addressing the elements set forth in § 50.10. If the Secretary determines that the request appears to contain these elements and is consistent with the affirmative-vote requirements set out in § 50.16(g)-(h), the Secretary will publish notice of receipt of the request in the
After the Department reviewed and considered public comments, it made several key clarifications and changes in this final rule (indicated below in italics). The final rule:
• Includes the Native Hawaiian community's ability to
• Adds definitions of “
•
• Provides that the
• Clarifies means for individuals to demonstrate a right to vote in the ratification referendum,
• Increases the comment period for the public to submit comments and evidence on a request to reestablish a government-to-government relationship to
• Limits extensions of any deadline under §§ 50.30 and 50.31 to a total of
• Clarifies that
•
• Further clarifies that reestablishment of the formal government-to-government relationship
The Department reviewed comments on a wide range of issues, but received significant comment on a narrow set of key issues. These issues are more fully addressed in responses to comments in Section (IV)(B) below, but are summarized here:
•
•
•
This portion of the preamble previews the final rule and highlights certain aspects of the rule that may benefit from additional explanation.
These provisions establish the purpose of this rule and explain that if a Native Hawaiian government requests a formal government-to-government relationship with the United States, as described in § 50.10, such a relationship will be reestablished only if the request is granted as described in §§ 50.40 to 50.43. The general provisions also provide that the United States will reestablish a formal government-to-government relationship with only a single Native Hawaiian government.
These provisions also define key terms used throughout the rule.
These provisions collectively explain what the Native Hawaiian community must include in its request submitted under this part.
Section 50.10 sets out the elements of the request itself. Those elements include specific written narratives for
This subpart addresses the procedural aspects of the rule, from the mechanics of submission to the notice-and-comment process. The final two sections, §§ 50.43 and 50.44, discuss the impact and implementation of reestablishing a formal government-to-government relationship.
The provisions of this rule are generally applicable only in response to a specific request for the reestablishment of a formal government-to-government relationship. Section 50.21 recognizes that the Department is prepared to provide technical assistance if requested. The rule does not, however, create an individual interest or cause of action allowing a challenge to the Native Hawaiian community's drafting, ratification, or implementation of a governing document, separate and apart from any proceedings that would follow the submission of a request under this part. By their terms, §§ 50.43 and 50.44 only apply following reestablishment of a formal government-to-government relationship and define the implementation of that relationship.
The Department actively sought public input in two stages on the rule's administrative procedure and criteria for reestablishing a formal government-to-government relationship with the Native Hawaiian community.
First, in June 2014, the Department published an ANPRM seeking input from leaders and members of the Native Hawaiian community and federally-recognized tribes in the continental United States. 79 FR 35296-303 (June 20, 2014). The ANPRM asked five threshold questions: (1) Should the Secretary propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community? (2) Should the Secretary assist the Native Hawaiian community in reorganizing its government, with which the United States could reestablish a government-to-government relationship? (3) If so, what process should be established for drafting and ratifying a reorganized government's constitution or other governing document? (4) Should the Secretary instead rely on the reorganization of a Native Hawaiian government through a process established by the Native Hawaiian community and facilitated by the State of Hawaii, to the extent such a process is consistent with Federal law? (5) If so, what conditions should the Secretary establish as prerequisites to Federal acknowledgment of a government-to-government relationship with the reorganized Native Hawaiian government? The Department posed 19 additional, specific questions concerning the reorganization of a Native Hawaiian government and a Federal process for reestablishing a formal government-to-government relationship. The ANPRM marked the beginning of ongoing discussions with the Native Hawaiian community, consultations with federally-recognized tribes in the continental United States, and input from the public at large.
The Department received extensive public comments on the ANPRM. The Department received general comments, both supporting and opposing the ANPRM, from individual members of the public, Members of Congress, State legislators, and community leaders.
Second, after careful review and analysis of the comments on the ANPRM, in October 2015 the Department issued a Notice of Proposed Rulemaking,
Comments came from Members of Congress, Hawaii State government offices and legislators, academics, members of the public residing in Hawaii and in the continental United States, as well as individuals residing internationally. Specifically, many Native Hawaiian Civic Clubs and Native Hawaiian community, legal, cultural, and business organizations, as well as
Numerous commenters expressed support for the Department's proposal without suggesting any changes and requested that the Department proceed to implement the rule as quickly as possible. Commenters who expressed general support frequently stated that the rule would provide a foundation for achieving parity in Federal policy related to indigenous communities in the United States. These commenters recognized and anticipated that there would be benefits to the Native Hawaiian Governing Entity from working directly with the Federal Government to implement existing Federal programs, and listed several other perceived benefits of a government-to-government relationship, including the Native Hawaiian Governing Entity's ability to (in no particular order): (1) Acquire land and create affordable housing solutions for its members; (2) enable more direct and effective management of assets and resources by Native Hawaiians in accordance with customary and traditional practices; (3) facilitate negotiations regarding the return of land and other assets to the Native Hawaiian people; (4) formalize management agreements with Federal, State, and local governments that enhance the ability of Native Hawaiians to contribute their knowledge and expertise to care for the environment and natural resources; (5) improve Native Hawaiians' ability to strengthen and perpetuate their indigenous culture and languages; (6) access certain veterans' benefits and health services for Native Hawaiian veterans; (7) compete for certain government contracts on a government-wide basis; and (8) more effectively coordinate health services with other human services to improve the overall health and wellness of the Native Hawaiian people. Other supporters noted that a government-to-government relationship could help preserve existing Native Hawaiian Federal benefits, such as culture-based charter and language-immersion schools, scholarships, and training programs, as well as economic, housing, and health services.
Many commenters, however, expressed opposition to the rule, advocating that the Department abandon its efforts entirely. Most of these opponents argued that the United States lacks jurisdiction to promulgate a rule, is illegally occupying the Hawaiian Islands, and violated and continues to violate international law respecting what the commenters argued is Native Hawaiians' right to self-determination under international law. Others objected to any Federal process that pertains to Native Hawaiian self-determination, stating that the rule would violate the U.S. Constitution as impermissibly race-based.
All public comments received on the ANPRM and the NPRM, along with supporting documents, are available in a combined docket at
The Department decided to proceed to the final-rule stage. As described in Section (III)(B) of this preamble, the Department made specific changes in response to public comments, including clarifications to address specific concerns. The Department appreciates the time commenters took to provide helpful information and valuable suggestions. Responses to significant comments relating to specific issues as well as comments relating to particular sections of the proposed rule follow below.
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Agents of the United States were involved in the overthrow of the Kingdom of Hawaii in 1893; and Congress, through a joint resolution, both acknowledged that the overthrow of Hawaii was “illegal” and expressed “its deep regret to the Native Hawaiian people” and its support for reconciliation efforts with Native Hawaiians. Apology Resolution at 1513. This Apology Resolution, however, did not effectuate any changes to existing law.
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Appropriations to fund the programs created by these and other Federal acts are an essential part of Congress's exercise of its plenary authority over indigenous peoples. Accordingly, the Department treats Congressional appropriations laws similar to legislation respecting programs for the Native Hawaiian community.
Moreover, this final rule only creates a pathway through which a formal government-to-government relationship can be reestablished; it does not by itself establish such a relationship. It is clear that Congress recognized the Native Hawaiian community as an indigenous community within the scope of Congress's Indian affairs power under the Constitution, as well as the community's inherent sovereignty and the United States' role in suppressing what the Apology Resolution described as the community's “rights to self-determination” through the overthrow of the Kingdom. It accordingly has provided that community with certain programs and benefits.
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In light of this change, the Department added a definition of “sworn statement” and introductory language in § 50.12 requiring the Native Hawaiian community to explain the procedures it used for verifying the self-certifying “Native Hawaiians” and “HHCA Native Hawaiians.” Section 50.12(b) sets out five ways in which a potential voter could, through a sworn statement, affirm his or her Native Hawaiian status.
• Is enumerated on a roll or list prepared by the State of Hawaii under State law (where enumeration is based on documentation that verifies Native Hawaiian descent);
• is currently or previously enrolled as a Native Hawaiian in a Kamehameha Schools program;
• is identified as “Native Hawaiian” (or some equivalent term) on a birth certificate; or
• is identified as “Native Hawaiian” (or some equivalent term) in a Federal, state, or territorial court order determining ancestry.
A sworn statement is sufficient evidence of HHCA Native Hawaiian status as long as that statement affirms that there are specific means to establish the potential voter's eligibility as Native Hawaiian under HHCA sec. 201(a)(7), or if the statement affirms that a court order does so.
The rule provides safeguards against potential voter fraud by requiring specific support for the potential voter's status, § 50.12(b), (c), as well as requiring separate vote tallies for Native Hawaiians and HHCA Native Hawaiians, § 50.14(b)(5)(v). In addition to these foundational provisions, the rule provides the public with an opportunity to present evidence on whether the community's request meets the standards set out in § 50.16 (§ 50.30(a)(2)(iv)), which could include evidence that, for example, the Native Hawaiian community did not meet the requirements of § 50.12 or § 50.14. Finally, the Secretary may request additional documentation and explanation with respect to the request submitted under this part (§ 50.40).
The comments make clear that there is no comprehensive listing of “Native Hawaiians” and “HHCA Native Hawaiians.” Therefore, it is likely that many may not be enumerated in any roll maintained by the State or other entity. The comments also make clear that many “Native Hawaiians” and “HHCA Native Hawaiians” objected to being enumerated on any roll, State sponsored
To be clear, sworn statements to verify a potential voter's own ancestry must reliably establish some degree of Native Hawaiian ancestry. Native Hawaiian ancestry is absolutely required for all Native Hawaiians seeking to participate in the ratification referendum. Accordingly, the sworn statement should describe the evidence relied on to establish eligibility to vote in the ratification referendum. The Native Hawaiian community could do so by requiring the potential voter to affirm that he or she is able to establish his or her Native Hawaiian or HHCA Native Hawaiian status through one of the methods listed in § 50.12(b)(3)(i)-(v) or (c)(2)(i)-(iv), respectively. The methods in § 50.12(b) and (c) are optional.
At the end of the sworn statement, the Native Hawaiian community could require language such as:
“I swear/affirm that the information I have provided is true to the best of my knowledge and understand that a false statement is punishable under state law. If I have provided false information, I may be fined, imprisoned, or both.”
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In further response, the Department determined that current or prior enrollment as a Native Hawaiian in a Kamehameha Schools program is acceptable verification of ancestry based on the Department's own research and commenters' confidence in that process as legitimate and well-established within the Native Hawaiian community for purposes of documenting Native Hawaiian descent. This change further necessitated a change to the introductory provisions of § 50.12 to require that the Native Hawaiian community explain its requirements for use of any sworn statements and the procedures it used for verifying the self-certifying “Native Hawaiians” and “HHCA Native Hawaiians.”
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The Department is aware of community concerns with respect to distinguishing between Native Hawaiians and HHCA Native Hawaiians. The rule includes relatively few conditions on the Native Hawaiian community's exercise of its inherent sovereignty to determine its own membership in any governing document. It is important to note that the rule sets forth a process to facilitate reestablishing a formal government-to-government relationship between the Native Hawaiian community and the United States, and does not impose a specific, or “foreign,” form of government on the community. Congressional dealings with the Native Hawaiian community also require that non-Native Hawaiians be excluded from the ratification vote and membership because the statutory definitions of the recognized community require a demonstration of descent from the population of Hawaii as it existed before Western contact.
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• The rule requires that the governing document protect and preserve rights, protections, and benefits under the HHCA.
• The rule leaves intact rights, protections, and benefits under the HHCA.
• The rule does not authorize the Native Hawaiian government to sell, dispose of, lease, tax, or otherwise encumber Hawaiian home lands or interests in those lands.
• The rule does not diminish any Native Hawaiian's rights or immunities, including any immunity from State or local taxation, under the HHCA.
• The rule defines the term “HHCA Native Hawaiians” to include any Native Hawaiian individual who meets the definition of “native Hawaiian” in the HHCA.
• The rule requires that the Native Hawaiian constitution or other governing document be approved in a ratification referendum not only by a majority of Native Hawaiians who vote, but also by a majority of HHCA Native Hawaiians who vote; and both majorities must include enough voters to demonstrate broad-based community support. This ratification process effectively eliminates any risk that the United States would reestablish a formal relationship with a Native Hawaiian government whose form is broadly objectionable to HHCA Native Hawaiians. The Department expects that the participation of HHCA Native Hawaiians in the referendum process will ensure that the structure of any ratified Native Hawaiian government will include long-term protections for HHCA Native Hawaiians.
• The rule prohibits the Native Hawaiian government's membership criteria from excluding any HHCA Native Hawaiian who wishes to be a member.
In short, HHCA beneficiaries' existing rights under Federal law, and the Secretary's and the State's authority and concurrent obligations, are unchanged by promulgation of this rule or the reestablishment of a formal government-to-government relationship with the Native Hawaiian Governing Entity. Ultimately, only Congress can diminish or otherwise modify the existing rights of HHCA beneficiaries, and the Native Hawaiian Governing Entity is bound by Federal law. Similarly, Congressional action would be required before the Native Hawaiian Governing Entity, or any political subdivision within it, would be authorized to manage Hawaiian home lands.
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A low vote in favor of the governing document would demonstrate a lack of broad-based community support. Similarly, a high voter turnout that fails to secure a majority of votes in favor of the governing document would also demonstrate a lack of broad-based community support. Accordingly, the rule sets numerical thresholds for community participation in support
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The same approach applies to the tally of affirmative votes cast by the subset of Native Hawaiians who are also “HHCA Native Hawaiians,” except the affirmative vote thresholds are 9,000 (rather than 30,000) and 15,000 (rather than 50,000).
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The Department finds the actual election data particularly probative. As explained above, in the 1990s, the Hawaii Office of Elections tracked Native Hawaiian status. The Office found that the percentage of Hawaii's registered voters who were Native Hawaiian was rising, from about 14.7 percent in 1992, to 15.5 percent in 1994, to 16.0 percent in 1996, and 16.7 percent in 1998. This trend is generally consistent with census data showing growth in recent decades in the number of persons identifying as Native Hawaiian. Thus, the census data and voter data are consistent and reliance on the voter data is reasonable.
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The Department based this analysis on existing, available data. If significant new data become available, the Secretary may elect to issue a supplemental rule revising the rule's thresholds.
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Although the IRA's 30-percent rule is not applicable, available demographic evidence suggests that the threshold numbers the Department selected are generally consistent with that rule. To take one example: It appears that, at some point between 2015 and 2017, the number of Native Hawaiian adults residing in Hawaii topped or will top 200,000.
Likewise, it is reasonable to estimate the number of HHCA Native Hawaiian adults residing in Hawaii to now be about 60,000.
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The proposed and final rules leave open the option of structuring a referendum process and balloting in such a way that the voters may cast votes on multiple documents at once—in effect, combining referenda on several documents into the same proceeding. Such an approach would provide the members of the Native Hawaiian community options while still providing clear evidence of which documents have broad-based support from the community through a majority vote.
But a simple plurality vote is not an appropriate way to measure whether a governing document has broad-based community support. Under a “plurality wins” rule, the number of votes required to prevail becomes a function of the number of options on the ballot, not how strongly and broadly supported any one option is. A majority vote is essential to show that the number of Native Hawaiians supporting a particular governing document exceeds the number opposing it. If the Native Hawaiian people want to consider more than one governing document in a single ratification referendum, they may do so by putting each document to its own up-or-down vote. Then, if only one governing document garners a majority of the votes cast, it satisfies the rule's majority-vote requirement. If two or more governing documents each garner a majority, then the community must apply a previously announced method for determining which governing document prevails. For example, the community could decide, prior to the referendum, that the “winner,” as between two (or more) governing documents that each receive majority support, will be the one that receives the greatest number of affirmative votes. This approach would also satisfy the rule's majority-vote requirement. But a document that is not supported by much more than a third, or a quarter, of Native Hawaiian voters cannot form the proper basis for a formal government-to-government relationship with the United States.
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Moreover, if the Native Hawaiian community wishes to require a supermajority vote to adopt its governing document, it certainly may do so without running afoul of the rule. However, the rule itself does not impose that requirement.
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The rule also requires that the Native Hawaiian community demonstrate in its request to reestablish a formal government-to-government relationship that its constitution or other governing document received broad-based community support from both HHCA Native Hawaiians and Native Hawaiians. Thus, regardless of which Congressional definition is used, a majority of each defined group within the voting members of the community must confirm their support for the Native Hawaiian government's structure and fundamental organic law. Although the distinction may be viewed unfavorably by some commenters, the Department chose to defer to the Congressional definition appearing in the HHCA in defining a class of eligible voters. Accordingly, both “HHCA Native Hawaiians” and “Native Hawaiians” may participate and have an opportunity to influence the content of a constitution or other governing documents and equally decide whether that constitution or other governing document is ratified.
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The Department did not include any requirements relating to qualifications for officers in the Native Hawaiian government because such qualifications are a matter of internal self-government. These issues should be decided by the Native Hawaiian community and reflected in its governing document.
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The Act 195 process is a separate and distinct process from that set out in this rule, and has a separate, although similar, purpose. The Department did not conform the requirements in the final rule to the provisions of any roll or process now existing or underway within the State of Hawaii. Nonetheless, as the Native Hawaiian community prepares its list of eligible voters, the rule does not prohibit it, in the exercise of self-determination over its own affairs, from relying on a State roll or State documentation that is based on verified documentation of descent as an alternative to doing its own verification of descent. The rule is intended to provide guidance and a process to a Native Hawaiian government that submits a request and can meet the rule's requirements. Such a request could be submitted at any time in the future, so the rule is not linked to any existing processes or circumstances that could limit its future application. Nor does the Department endorse any particular roll or process over any other.
Commenters refer to the fact that the rule's requirements differ from those applied by the Native Hawaiian Roll Commission. Differing requirements reflect the separate nature of the two processes and their results. Further, the Department notes that the requirements applied by the Commission have changed since the initial enactment of Act 195, and may be subject to subsequent changes. If the Department receives a request seeking to reestablish a government-to-government relationship, the Department will evaluate whether the request meets the rule's criteria and is consistent with this part.
Although some statutes require U.S. citizenship as an element of the statutory definition of membership in the Native Hawaiian community, those statutes generally involve eligibility for federally funded programs or benefits.
Although the Department considers membership criteria to be matters of internal self-governance, to the extent Federal law incorporates U.S. citizenship as a requirement for participation in a Federal program or for eligibility for Federal benefits, that requirement remains in effect, notwithstanding membership provisions adopted by a Native Hawaiian government.
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The Department agrees with this comment in part. The proposed rule incorporated distinct standards for use of a roll compiled by a State agency. In response to these comments, the rule now provides that the Native Hawaiian community will compile its list of eligible voters. The rule provides a uniform standard to govern the list of eligible voters for the ratification referendum, which would apply irrespective of who prepared the list. That approach allows the Native Hawaiian community the freedom to determine how it will develop a list for use in ratification of its governing documents.
The rule does not, however, bar the use of a roll that incorporates work by State agencies, especially if it is efficient to do so. For instance, the Department sees little benefit in the Native Hawaiian community redoing work done by the State that verified Native Hawaiian ancestry, including its determination that an individual qualifies as an HHCA Native Hawaiian. To the extent a State roll is based on documented ancestry, the Native Hawaiian community may rely on it, if it so chooses. Such reliance will facilitate the process of preparing its list of voters, particularly if relevant records are within the exclusive control of State agencies, and will minimize the burdens on individual Native Hawaiians who previously submitted documentary evidence and were determined to be qualified. The Department respects the Native Hawaiian community's ability to reorganize its government for the purposes of reestablishing a formal government-to-government relationship as it sees fit, and therefore defers to the community as to whether and to what extent it wishes to rely on State sources to tailor a list of eligible voters for ratification purposes. The Department revised § 50.12 to address these comments.
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For instance, the Department acknowledged commenters' concerns by providing a uniform standard for preparation of the list of eligible voters by the Native Hawaiian community. The criteria for the list provide that it must not include adults who object to being listed, and revised § 50.12(a) provides that the community must make reasonable and prudent efforts to ensure the integrity of its list. Importantly, the proposed rule did not require use of any State roll; and the final rule permits,
Moreover, the Department defers to the Native Hawaiian community itself to establish the process by which it will compile any list of voters, subject to certain requirements set forth in the final rule. These requirements address some of issues raised by commenters relating to the NHRC. For instance, the proposed and final rules both contain provisions that are intended to provide for the integrity of the process of compiling the list and to protect the integrity of the voting process itself. The rule permits the community to rely on documented sources that it determines are reliable in compiling its list.
If a reorganized government submits a request to the Secretary to reestablish a formal government-to-government relationship, the rule provides that the request must include an explanation of the manner in which the rule's requirements were satisfied. The public will have an opportunity to comment on any request the Secretary receives. Individuals who continue to have concerns about the process used in compiling the voter list may submit comments at that time. In making a decision, the Secretary will review not only the specific request but also the overall integrity of the ratification process to determine if it was free and fair and otherwise complies with the rule's requirements.
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The Department need not and will not address the merits of the
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Accordingly, the final rule includes a revised § 50.12(a) that provides that the Native Hawaiian community itself prepares the list of eligible voters. It also clarifies alternative means by which an individual Native Hawaiian can demonstrate a right to vote in the
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If a reorganized government submits a request to the Secretary to reestablish a formal government-to-government relationship, the rule provides that the request must include an explanation of the manner in which these requirements were satisfied. The public will have an opportunity to comment on any request the Secretary receives. Individuals who have concerns about the process used by the Native Hawaiian community may submit comments at that time.
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With respect to comments questioning the legal status of existing Federal property, the Supreme Court recently discussed this issue in
Several commenters expressed the importance of allowing a future Native Hawaiian sovereign to hold property, noting that Native Hawaiians are spiritually connected to the land and that title to land can facilitate self-governance. Although the rule does not affect Federal lands, a future Native Hawaiian government could acquire property by other methods. For example, an existing provision of State law provides for the transfer of one of the Hawaiian Islands, Kahoolawe, to “the sovereign native Hawaiian entity upon its recognition by the United States and the State of Hawaii.” Haw. Rev. Stat. 6K-9 (2016). A future Native Hawaiian government could also acquire property by other means, and the rule does not affect its ability to do so.
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As stated above, the Department appreciates that members of the community believe it is important to secure a land base for the future reorganized Native Hawaiian government; however, providing for jurisdiction or changing the status of Federal lands and property may only occur with statutory authorization. Following reestablishment of a government-to-government relationship, the Native Hawaiian Governing Entity may advance any concerns it may have on land-related issues to the executive and legislative branches of the United States Government on a government-to-government basis.
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To the extent that Native Hawaiians are not eligible for certain programs, it follows that this treatment reflects a conscious decision by Congress. Moreover, because of the structure of many Federal programs, to treat a Native Hawaiian government or its members as eligible for programs provided generally to federally-recognized tribes or their members in the continental United States could result in duplicative services or benefits. The Department concludes that it is for Congress to decide to include Native Hawaiians in additional Federal programs directed towards Native Americans.
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For example, the Native Hawaiian Governing Entity would have authority to exercise jurisdiction over relationships between its members by enacting family laws, contract laws, or other laws that would govern those relationships. To the extent that the Native Hawaiian Governing Entity adopts such laws, they generally would apply as between its members notwithstanding contrary State law.
Because there is no Indian country in Hawaii, upon reestablishing a government-to-government relationship with the United States, the Native Hawaiian Governing Entity would not have territorial jurisdiction. While Congress imposed certain restrictions on alienation of Hawaiian home lands, title to those lands is held by the State, not the Federal Government. Therefore, the State retains jurisdiction over Hawaiian home lands unless Congress provides otherwise in the future.
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The Department notes that, due to the unique history of Hawaii, either the term “reestablish” or the term “establish” could be used to describe the formalization of the relationship
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That the Kingdom of Hawaii included non-Hawaiian citizens among its citizenry does not establish that the Native Hawaiian community ceased to exist or exercise political authority. As set forth in the background discussion of this rule, the Native Hawaiian community continued to demonstrate its existence as a distinct political community separate and apart from non-Native Hawaiians before, during, and after the Kingdom's overthrow. Moreover, though non-Native Hawaiians participated in governance of the Kingdom, they were considered “foreigners” and their rights were limited.
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As correctly noted by commenters, Congress used two definitions of Native Hawaiian to establish eligibility for Native Hawaiian programs and services.
The final rule also envisions that the Native Hawaiian government may adopt either a centralized structure or a decentralized structure with political subdivisions defined by island, by geographic districts, historic circumstances, or otherwise in a fair and reasonable manner. Allowing for political subdivisions is consistent with principles of self-determination applicable to Native groups, and provides some flexibility should Native Hawaiians wish to provide for subdivisions with whatever degree of autonomy the community determines is appropriate, although only a single formal government-to-government
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As discussed in Section (V), the ANPRM specifically solicited comments through a series of questions relating to whether the Department should assist the Native Hawaiian community in reorganizing its government and whether the Department should take administrative action to facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community. The issuance of an ANPRM is not required by statute, and it is an option that Federal agencies often determine is not necessary to pursue. The Department determined, however, that issuing an ANPRM would be a vital first step in gathering diverse and informed input from the Native Hawaiian community itself. To that end, the Department held 15 public meetings in Hawaii, divided among the major islands, over a three-week period. These public meetings provided opportunities for extensive comment from the community, resulting in over 40 hours of testimony. The Department met with a range of Native Hawaiian community organizations in Hawaii for educational outreach during the same period. The Department also conducted five consultations on the U.S. mainland where many Native Hawaiians offered comment on the ANPRM, and accepted invitations from mainland-based Native Hawaiian organizations to participate in forums regarding the ANPRM.
Based on the comprehensive input received on the ANPRM, the Department drafted the proposed rule that was published in October 2015. Following publication of the proposed rule, the Department further consulted with the public and the Native Hawaiian community through four teleconferences and produced a video that explained its provisions,
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With regard to 25 CFR part 83, the Ninth Circuit concluded that the regulations for Federal acknowledgment of tribes in the continental United States do not apply to Native Hawaiians.
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Finally, as to DHHL's concern about collateral effects on its certification processes, a determination by the Native Hawaiian community that an individual is an “HHCA Native Hawaiian” for purposes of compliance with this rule would not have any collateral effect on eligibility determinations made by DHHL for its own purposes under its own processes, which may rely on a distinct methodology or distinct documentation standards.
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Consistent with sections 5(b)(2)(B) and 5(c)(2) of Executive Order 13175, and because the Department consulted with tribal officials in the continental United States prior to publishing this rule, the Department seeks to assist tribal officials, and the public as a whole, by including in this preamble the three key elements of a tribal summary impact statement. Specifically, the preamble to this rule (1) describes the extent of the Department's prior consultation with tribal officials; (2) summarizes the nature of their concerns and the
Comments regarding access to Federal programs, services, and benefits available to federally-recognized Indian tribes: The Department received comments strongly supporting Federal rulemaking to reestablish a formal government-to-government relationship between the United States and the Native Hawaiian community. Comments expressed concern about the rule's potential impact, if any, on Federal Indian programs, services, andbenefits—that is, federally funded or authorized special programs, services, and benefits provided by Federal agencies (such as the Bureau of Indian Affairs and the Indian Health Service) to federally-recognized Indian tribes in the continental United States. Comments expressed an understanding that Native Hawaiians are ineligible for Federal Indian programs and services absent express Congressional declarations to the contrary, and recommended that existing and future programs, services, and benefits for a reorganized Native Hawaiian government remain separate from programs and services dedicated to tribes in the continental United States.
When creating programs, services, and benefits, Congress systematically distinguishes between programs, services, and benefits to Indian tribes in the continental United States and those provided to the Native Hawaiian community. Congress enacted programs and services expressly and specifically for the Native Hawaiian community that are in many respects parallel and analogous to—but distinct from—the programs and services enacted for federally-recognized tribes in the continental United States. Federal Native Hawaiian programs and services are provided to Native Hawaiians as an indigenous Native Hawaiian community under the Indian affairs power, just as Federal Indian programs and services are provided to Indian tribes in the continental United States under the Indian affairs power.
In some instances, Congress expressly provided for Native Hawaiians to receive benefits as part of a program provided to Native Americans generally; in others, Congress has provided a distinct program or set of programs, parallel to those that exist for other Native American communities. To the extent that Native Hawaiians are not eligible for certain programs under current law, it follows that this treatment reflects a conscious decision by Congress. Moreover, because of the structure of many Federal programs, treating a Native Hawaiian Governing Entity or its members as eligible for programs provided generally to federally-recognized Indian tribes in the continental United States or their members could result in duplicative services or benefits.
Congress's systematic provision of separate benefits for Native Hawaiians gives rise to a presumption that Congress did not intend that Native Hawaiians would also receive essentially duplicative programs, services, and benefits through programs available to tribes in the continental United States.
The distinction between Federal Native Hawaiian programs and services and Federal Indian programs and services is apparent in the List Act, which requires the Secretary to publish in the
This unique provision of separate programs and services removes Native Hawaiians from the scope of the
Section 50.44(c)-(d) of the final rule similarly implements Congress's longstanding distinction between Native Hawaiian programs and services and
The vast bulk of Federal Indian statutes providing programs and services expressly state that they cover only those Indian tribes that the Secretary deems eligible for the special programs and services that the United States provides to Indians because of their status as Indians. Such statutes include the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 450b(e). These Federal Indian statutes do not currently cover the Native Hawaiian community, nor would they cover that governing entity with which the United States reestablishes the formal government-to-government relationship.
Some Federal statutes, however, extend to all Indian tribes without expressly stating that they cover only those Indian tribes that the Secretary deems eligible for the special programs and services that the United States provides to Indians in the continental United States. Unless the statute's text, structure, purpose, or legislative history is to the contrary, these statutes would cover the Native Hawaiian Governing Entity.
For certain Federal statutes there may be additional indicators that particular provisions should or should not be available to the Native Hawaiian Governing Entity or its members. The Department's interpretation of a Federal statute providing programs and services to tribes and their members typically will turn on the statute's definition of the term “Indian tribe,” but a clear expression of Congressional intent will control. Also, a Federal agency administering a statute will have authority to resolve any question that may arise as to the meaning of that statute and the scope of available programs, services, and benefits.
This determination that the Native Hawaiian Governing Entity is not eligible for general Federal Indian programs, services, and benefits also comports with Congress's express intent that the Department's Assistant Secretary for Policy, Management and Budget (PMB), not the Assistant Secretary for Indian Affairs, oversee Native Hawaiian matters, as stated in the HHLRA, sec. 206, 109 Stat. 363.
The Department held public meetings to gather testimony at both the ANPRM and proposed rule stages of this rulemaking. In June and July 2014, staff from the Departments of the Interior and Justice traveled to Hawaii to conduct 15 public meetings on the ANPRM across the State. Hundreds of stakeholders and interested parties attended sessions on the islands of Hawaii, Kauai, Lanai, Maui, Molokai, and Oahu. Also during that time, staff conducted extensive, informal outreach with Native Hawaiian organizations, groups, and community leaders. Following the public meetings in Hawaii, the Department held five U.S. mainland regional consultations in Indian country, supplemented with targeted community outreach in locations with significant Native Hawaiian populations. To build on the extensive record gathered during the ANPRM, in October and November 2015, the Department held four three-hour teleconferences on the NPRM: two teleconferences that were open to the public, one specifically targeted to Native Hawaiian organizations, and one specifically targeted to tribal leaders. Transcripts from all public meetings held during the ANPRM and NPRM stages are available in the online docket as well as on the Department's Web site (
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA determined that this final rule is significant because it may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive Order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The Department developed this final rule in a manner consistent with these requirements.
The Department certifies that this final rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 601
The Regulatory Flexibility Act, as amended, requires that Federal agencies evaluate the potential incremental impacts of rulemaking only on those entities directly regulated by the rulemaking itself and, therefore, not on indirectly regulated entities. If a reorganized Native Hawaiian government decides to seek a formal government-to-government relationship with the United States, the rule provides the requirements for submitting a written request to the Secretary of the Interior. The rule would directly affect any such Native Hawaiian government. A small governmental jurisdiction is the government of a city, town, township, village, school district, or special district, with a population of less than fifty thousand, unless the agency establishes a different definition that is appropriate to the activities of the agency by notice and comment.
This final rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It will not result in the expenditure by state, local, or tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year. The rule's requirements will not cause a major increase in costs or prices for consumers, individual industries, Federal, state, or local government agencies, or geographic regions. Nor will this rule have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This final rule does not impose an unfunded mandate on state, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on state, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
Under the criteria in Executive Order 12630, this final rule does not affect individual property rights protected by the Fifth Amendment nor does it involve a compensable “taking.” A takings implications assessment therefore is not required.
Under the criteria in Executive Order 13132, this final rule has no substantial and 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. A federalism implications assessment therefore is not required.
This final rule complies with the requirements of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity and written to minimize litigation; and is written in clear language and contains clear legal standards.
Under Executive Order 13175, the Department held several consultation sessions with federally-recognized tribes in the continental United States. Details on these consultation sessions and on comments the Department received from tribes and intertribal organizations are described above. The Department considered each of those comments and addressed them, where possible, in the final rule.
This final rule does not require an information collection from ten or more parties, and a submission under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
This final rule does not constitute a major Federal action significantly affecting the quality of the human environment because it is of an administrative, technical, or procedural nature.
In developing this final rule we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).
This final rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required. This rule will not have a significant effect on the nation's energy supply, distribution, or use.
Administrative practice and procedure, Indians—tribal government.
For the reasons stated in the preamble, the Department of the Interior amends title 43 of the Code of Federal Regulations by adding part 50 as set forth below:
5 U.S.C. 301; 25 U.S.C. 2, 9; 25 U.S.C. 479a, 479a-1 (2015) (reclassified to 25 U.S.C. 5130, 5131 (2016)); 43 U.S.C. 1457; Pub. L. 67-34, 42 Stat. 108, as amended; Pub. L. 86-3, 73 Stat. 4; Pub. L. 103-150, 107 Stat. 1510; sec. 148, Pub. L. 108-199, 118 Stat. 445; 112 Departmental Manual 28.
This part sets forth the Department's administrative procedure and criteria for reestablishing a formal government-to-government relationship between the United States and the Native Hawaiian community that will allow:
(a) The Native Hawaiian community to more effectively exercise its inherent sovereignty and self-determination; and
(b) The United States to more effectively implement and administer:
(1) The special political and trust relationship that exists between the United States and the Native Hawaiian community, as recognized by Congress; and
(2) The Federal programs, services, and benefits that Congress created specifically for the Native Hawaiian community (
A Native Hawaiian government seeking to reestablish a formal government-to-government relationship with the United States under this part must submit to the Secretary a request as described in § 50.10. Reestablishment of a formal government-to-government relationship will occur if the Secretary grants the request as described in §§ 50.40 through 50.43.
The Secretary will reestablish a formal government-to-government relationship with only one sovereign Native Hawaiian government, which may include political subdivisions with limited powers of self-governance defined in the Native Hawaiian government's governing document.
As used in this part, the following terms have the meanings given in this section:
(1) A Native Hawaiian or an HHCA Native Hawaiian; and
(2) The sponsor's parent, child, sibling, grandparent, grandchild, aunt, uncle, niece, nephew, or first cousin.
A request must include the following seven elements:
(a) A written narrative with supporting documentation thoroughly describing how the Native Hawaiian community drafted the governing document, as described in § 50.11;
(b) A written narrative with supporting documentation thoroughly describing how the Native Hawaiian community determined who could participate in ratifying the governing document, consistent with § 50.12;
(c) The duly ratified governing document, as described in § 50.13;
(d) A written narrative with supporting documentation thoroughly describing how the Native Hawaiian community adopted or approved the governing document in a ratification referendum, as described in § 50.14;
(e) A written narrative with supporting documentation thoroughly describing how and when elections were conducted for government offices identified in the governing document, as described in § 50.15;
(f) A duly enacted resolution of the governing body authorizing an officer to certify and submit to the Secretary a request seeking the reestablishment of a formal government-to-government relationship with the United States; and
(g) A certification, signed and dated by the authorized officer, stating that the submission is the request of the governing body.
The written narrative thoroughly describing the process for drafting the governing document must describe how the process ensured that the document was based on meaningful input from representative segments of the Native Hawaiian community and reflects the will of the Native Hawaiian community.
The written narrative thoroughly describing how the Native Hawaiian community determined who could participate in ratifying the governing document must explain how the Native Hawaiian community prepared its list of eligible voters consistent with paragraph (a) of this section. The narrative must explain the processes the Native Hawaiian community used to verify that the potential voters were Native Hawaiians consistent with paragraph (b) of this section, and to verify which of those potential voters were also HHCA Native Hawaiians, consistent with paragraph (c) of this section, and were therefore eligible to vote. The narrative must explain the processes, requirements, and conditions for use of any sworn statements and explain how those processes, requirements, and conditions were reasonable and reliable for verifying Native Hawaiian descent.
(a)
(1) The list of Native Hawaiians eligible to vote in the ratification referendum must:
(i) Be based on reliable proof of Native Hawaiian descent;
(ii) Be made available for public inspection;
(iii) Be compiled in a manner that allows individuals to contest their exclusion from or inclusion on the list;
(iv) Include adults who demonstrated that they are Native Hawaiians in accordance with paragraph (b) of this section;
(v) Include adults who demonstrated that they are HHCA Native Hawaiians in accordance with paragraph (c) of this section;
(vi) Identify voters who are HHCA Native Hawaiians;
(vii) Not include persons who will be younger than 18 years of age on the last day of the ratification referendum; and
(viii) Not include persons who requested to be removed from the list.
(2) The community must make reasonable and prudent efforts to ensure the integrity of its list.
(3) Subject to paragraphs (a)(1) and (2) of this section, the community may rely on a roll of Native Hawaiians prepared by the State under State law.
(b)
(1) Enumeration on a roll or other list prepared by the State under State law, where enumeration is based on documentation that verifies Native Hawaiian descent;
(2) Meeting the requirements of paragraph (c) of this section;
(3) A sworn statement by the potential voter that he or she:
(i) Is enumerated on a roll or other list prepared by the State under State law, where enumeration is based on documentation that verifies Native Hawaiian descent;
(ii) Is identified as Native Hawaiian (or some equivalent term) on a birth certificate issued by a state or territory;
(iii) Is identified as Native Hawaiian (or some equivalent term) in a Federal, state, or territorial court order determining ancestry;
(iv) Can provide records documenting current or prior enrollment as a Native Hawaiian in a Kamehameha Schools program; or
(v) Can provide records documenting generation-by-generation descent from a Native Hawaiian ancestor;
(4) A sworn statement from a sponsor who meets the requirements of paragraph (b)(1), (2), or (3) of this section that the potential voter is Native Hawaiian; or
(5) Other similarly reliable means of establishing generation-by-generation descent from a Native Hawaiian ancestor.
(c)
(1) Records of DHHL, including enumeration on a roll or other list prepared by DHHL, documenting eligibility under HHCA sec. 201(a)(7);
(2) A sworn statement by the potential voter that he or she:
(i) Is enumerated on a roll or other list prepared by DHHL, documenting eligibility under HHCA sec. 201(a)(7);
(ii) Is identified as eligible under HHCA sec. 201(a)(7) in specified State or territorial records;
(iii) Is identified as eligible under HHCA sec. 201(a)(7) in a Federal, state, or territorial court order; or
(iv) Can provide records documenting eligibility under HHCA sec. 201(a)(7) through generation-by-generation descent from a Native Hawaiian ancestor or ancestors;
(3) A sworn statement from a sponsor who meets the requirements of paragraph (c)(1) or (2) of this section that the potential voter is an HHCA Native Hawaiian; or
(4) Other similarly reliable means of establishing eligibility under HHCA sec. 201(a)(7).
The governing document must:
(a) State the government's official name;
(b) Prescribe the manner in which the government exercises its sovereign powers;
(c) Establish the institutions and structure of the government, and of its political subdivisions (if any) that are defined in a fair and reasonable manner;
(d) Authorize the government to negotiate with governments of the United States, the State, and political subdivisions of the State, and with non-governmental entities;
(e) Provide for periodic elections for government offices identified in the governing document;
(f) Describe the criteria for membership, which:
(1) Must permit HHCA Native Hawaiians to enroll;
(2) May permit Native Hawaiians who are not HHCA Native Hawaiians, or some defined subset of that group that is not contrary to Federal law, to enroll;
(3) Must exclude persons who are not Native Hawaiians;
(4) Must establish that membership is voluntary and may be relinquished voluntarily; and
(5) Must exclude persons who voluntarily relinquished membership;
(g) Protect and preserve Native Hawaiians' rights, protections, and benefits under the HHCA and the HHLRA;
(h) Protect and preserve the liberties, rights, and privileges of all persons affected by the government's exercise of its powers,
(i) Describe the procedures for proposing and ratifying amendments to the governing document; and
(j) Not contain provisions contrary to Federal law.
The written narrative thoroughly describing the ratification referendum must include the following information:
(a) A certification of the results of the ratification referendum including:
(1) The date or dates of the ratification referendum;
(2) The number of Native Hawaiians, regardless of whether they were HHCA Native Hawaiians, who cast a vote in favor of the governing document;
(3) The total number of Native Hawaiians, regardless of whether they were HHCA Native Hawaiians, who cast a ballot in the ratification referendum;
(4) The number of HHCA Native Hawaiians who cast a vote in favor of the governing document; and
(5) The total number of HHCA Native Hawaiians who cast a ballot in the ratification referendum.
(b) A description of how the Native Hawaiian community conducted the ratification referendum that demonstrates:
(1) How and when the Native Hawaiian community made the full text of the proposed governing document (and a brief impartial description of that document) available to Native Hawaiians prior to the ratification referendum, through the Internet, the news media, and other means of communication;
(2) How and when the Native Hawaiian community notified Native Hawaiians about how and when it would conduct the ratification referendum;
(3) How the Native Hawaiian community accorded Native Hawaiians a reasonable opportunity to vote in the ratification referendum;
(4) How the Native Hawaiian community prevented voters from casting more than one ballot in the ratification referendum; and
(5) How the Native Hawaiian community ensured that the ratification referendum:
(i) Was free and fair;
(ii) Was held by secret ballot or equivalent voting procedures;
(iii) Was open to all persons who were verified as satisfying the definition of a Native Hawaiian (consistent with § 50.12) and were 18 years of age or older, regardless of residency;
(iv) Did not include in the vote tallies votes cast by persons who were not Native Hawaiians; and
(v) Did not include in the vote tallies for HHCA Native Hawaiians votes cast by persons who were not HHCA Native Hawaiians.
(c) A description of how the Native Hawaiian community verified whether a potential voter in the ratification referendum was a Native Hawaiian and whether that potential voter was also an HHCA Native Hawaiian, consistent with § 50.12.
The written narrative thoroughly describing how and when elections were conducted for government offices identified in the governing document, including members of the governing body, must show that the elections were:
(a) Free and fair;
(b) Held by secret ballot or equivalent voting procedures; and
(c) Open to all eligible Native Hawaiian members as defined in the governing document.
The Secretary will grant a request if the Secretary determines that each criterion on the following list of eight criteria has been met:
(a) The request includes the seven required elements described in § 50.10;
(b) The process by which the Native Hawaiian community drafted the governing document met the requirements of § 50.11;
(c) The process by which the Native Hawaiian community determined who could participate in ratifying the governing document met the requirements of § 50.12;
(d) The duly ratified governing document, submitted as part of the request, meets the requirements of § 50.13;
(e) The ratification referendum for the governing document met the requirements of § 50.14(b) and (c) and was conducted in a manner not contrary to Federal law;
(f) The elections for the government offices identified in the governing document, including members of the governing body, were consistent with § 50.15 and were conducted in a manner not contrary to Federal law;
(g) The number of votes that Native Hawaiians, regardless of whether they were HHCA Native Hawaiians, cast in favor of the governing document exceeded half of the total number of ballots that Native Hawaiians cast in the ratification referendum:
(h) The number of votes that HHCA Native Hawaiians cast in favor of the governing document exceeded half of the total number of ballots that HHCA Native Hawaiians cast in the ratification referendum:
If the Native Hawaiian community seeks to reestablish a formal government-to-government relationship with the United States, the request under this part must be submitted to the Secretary, Department of the Interior, 1849 C Street NW., Washington, DC 20240.
Yes. The Department may provide technical assistance to facilitate compliance with this part and with other Federal law, upon request for assistance.
(a) Within 20 days after receiving a request that appears to the Department to be consistent with §§ 50.10 and 50.16(g) and (h), the Department will:
(1) Publish in the
(2) Post on the Department Web site:
(i) The request, including the governing document;
(ii) The name and mailing address of the requester;
(iii) The date of receipt; and
(iv) Notice of the opportunity for the public, within 60 days following publication of the
(b) Within 20 days after the close of the comment period, the Department will post on its Web site any comment or notice of evidence relating to the request that was timely submitted to the Department in accordance with paragraphs (a)(1) and (a)(2)(iv) of this section.
Following the Web site posting described in § 50.30(b), the requester will have 60 days to respond to any comment or evidence that was timely submitted to the Department in accordance with § 50.30(a)(1) and (a)(2)(iv).
Yes. Upon a finding of good cause, the Secretary may extend any deadline in § 50.30 or § 50.31 by a maximum of 90 days and post on the Department Web site the length of and the reasons for the extension:
The Secretary will apply the criteria described in § 50.16 and endeavor to either grant or deny a request within 120 days of determining that the requester's submission is complete and after receiving all the information described in §§ 50.30 and 50.31. The Secretary may request additional documentation and explanation from the requester or the public with respect to the material submitted, including whether the request is consistent with this part. If the Secretary is unable to act within 120 days, the Secretary will provide notice to the requester, and include an explanation of the need for more time and an estimate of when the decision will issue.
The decision will respond to significant public comments and summarize the evidence, reasoning, and analyses that are the basis for the Secretary's determination regarding whether the request meets the criteria described in § 50.16 and is consistent with this part.
The Secretary's decision will take effect 30 days after the publication of notice in the
When a decision granting a request takes effect, the requester will immediately be identified as the Native Hawaiian Governing Entity (or the official name stated in that entity's governing document), the special political and trust relationship between the United States and the Native Hawaiian community will be reaffirmed, and a formal government-to-government relationship will be reestablished with the Native Hawaiian Governing Entity as the sole representative sovereign government of the Native Hawaiian community.
(a) Upon reestablishment of the formal government-to-government relationship, the Native Hawaiian Governing Entity will have the same formal government-to-government relationship under the United States Constitution and Federal law as the formal government-to-government relationship between the United States and a federally-recognized tribe in the continental United States, in recognition of the existence of the same inherent sovereign governmental authorities, subject to the limitation set forth in paragraph (d) of this section.
(b) The Native Hawaiian Governing Entity will be subject to the plenary authority of Congress to the same extent as are federally-recognized tribes in the continental United States.
(c) Absent Federal law to the contrary, any member of the Native Hawaiian Governing Entity presumptively will be eligible for current Federal Native Hawaiian programs, services, and benefits.
(d) The Native Hawaiian Governing Entity, its political subdivisions (if any), and its members will not be eligible for Federal Indian programs, services, and benefits unless Congress expressly and specifically has declared the Native Hawaiian community, the Native Hawaiian Governing Entity (or the official name stated in that entity's governing document), its political subdivisions (if any), its members, Native Hawaiians, or HHCA Native Hawaiians to be eligible.
(e) Reestablishment of the formal government-to-government relationship will not authorize the Native Hawaiian Governing Entity to sell, dispose of, lease, tax, or otherwise encumber Hawaiian home lands or interests in those lands, or to diminish any Native Hawaiian's rights, protections, or benefits, including any immunity from State or local taxation, granted by:
(1) The HHCA;
(2) The HHLRA;
(3) The Act of March 18, 1959, 73 Stat. 4; or
(4) The Act of November 11, 1993, secs. 10001-10004, 107 Stat. 1418, 1480-84.
(f) Reestablishment of the formal government-to-government relationship does not affect the title, jurisdiction, or status of Federal lands and property in Hawaii.
(g) Nothing in this part impliedly amends, repeals, supersedes, abrogates, or overrules any applicable Federal law, including case law, affecting the privileges, immunities, rights, protections, responsibilities, powers, limitations, obligations, authorities, or jurisdiction of any federally-recognized tribe in the continental United States.
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 |